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High Court of Australia Transcripts |
Adelaide No A37 of 1998
B e t w e e n -
CORPORATION OF THE CITY OF ENFIELD
Appellant
and
DEVELOPMENT ASSESSMENT COMMISSION and COLLEX WASTE MANAGEMENT SERVICES PTY LTD
Respondents
GLEESON CJ
GAUDRON J
GUMMOW J
KIRBY J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT ADELAIDE ON WEDNESDAY, 11 AUGUST 1999, AT 10.16 AM
Copyright in the High Court of Australia
MR A.J. BESANKO, QC: If the Court pleases, I appear with my learned friend, MR G.K. FEARY, for the appellant. (instructed by Piper Alderman)
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR B.R.M. HAYES, QC, for the second respondent. (instructed by Johnson Lawyers)
GLEESON CJ: There is a certificate from the Deputy Registrar saying that she has been informed by the Crown Solicitor's Office, who are the solicitors for the first respondent in this matter, that the first respondent does not wish to be represented at the hearing of the appeal and will abide by the orders of the Court, save as to costs. Yes, Mr Besanko.
MR BESANKO: If the Court pleases. Your Honours, the notice of appeal is in volume 2 of the appeal book at page 429 and can I advise the Court that the appellant does not press grounds 6 and 7 of the notice of appeal, which appear at page 432.
GLEESON CJ: Thank you.
MR BESANKO: Your Honours, the judgment of the Full Court in this matter commences at page 394 of volume 2 of the appeal books. The relevant part of the judgment commences at page 413 under the heading "The Role of this Court". Can we commence our submissions by submitting that there were essentially three matters, at least in theory, for the Full Court in this appeal. The first matter was to determine whether the question - and if I can call it "question" for the moment - was a jurisdictional question. The court decided that issue in our favour, as did the learned trial judge - - -
GUMMOW J: What is the next paragraph all about?
At common law the courts have no power to bind the Crown or its instrumentalities by injunction:
This Commission is not the Crown.
MR BESANKO: No.
GAUDRON J: And in any event, would the injunction not go to Collex?
MR BESANKO: Yes, it would, your Honour. Your Honours, both the Full Court and the learned trial judge decided that the matter was a jurisdictional matter. The second question was: was it a jurisdictional fact or was it a matter to be determined in the opinion of the authority? Again, both the learned trial judge and the Full Court decided that issue in favour of the appellant. The third matter was the question of what deference should be accorded to the Development Assessment Commission, the court having decided that it was, in essence, a jurisdictional fact as to whether this was a non-complying development.
KIRBY J: What does that last question mean? I mean, is there a Richter scale of deference that you have absolute deference, profound deference, lots of deference, no deference at all, contempt? I mean, what does it mean "deference"; what does it mean for a legal purpose? It is a very nebulous word that can cover a whole multitude of attitudes.
MR BESANKO: Yes, and we submit, your Honour, that there would be, in effect, a scale of deference. There would be circumstances where considerable deference was given and others where very little deference would be given.
KIRBY J: I mean, I know it is used in the authorities, especially in the United States, and I suspect I have used it myself, but I just do not quite know what it means in practice. I could understand a rule of absolute deference; a court of law cannot then interfere. But I just do not quite see how it works as a legal proposition, as distinct from maybe some sociological explanation of why courts come to a particular conclusion in a particular case.
MR BESANKO: Yes, your Honour.
KIRBY J: "Well, the judges showed deference in that case; that was high on the Richter scale of deference".
MR BESANKO: Yes. If the evidence remained the same, that would be one situation clearly where, if the evidence was doubtful and the court was unsure, it may defer to the decision made by the inferior body. But if there is fresh evidence that comes before the court, then our submission is that the court makes a decision on the basis of that evidence and, in effect, if there is new evidence, there would be very little deference.
KIRBY J: Well, there is none. If the Full Court goes ahead and makes its own decision on new evidence, then it is not showing any deference whatsoever.
MR BESANKO: That is so, your Honour.
KIRBY J: It may be the deference is shown at the point when you decide, if you may, that you will receive further evidence.
MR BESANKO: Yes.
KIRBY J: So the judge sitting in his chambers on a Saturday night writing reasons says, "Well, I show a lot of deference here but I just think they got it wrong, so I'm going to go ahead and do it my own way".
MR BESANKO: Yes. Well, your Honour, our submission would be that deference would never mean that you could not call evidence; you must always be able to call evidence, and that there would not be a situation where the court would, in effect, at an interlocutory stage have a look at the decision and say, "We think it's doubtful, we are going to defer, and that means we will not permit the calling of evidence".
GUMMOW J: Well, you might get into some such situation if there is an application for an interlocutory injunction in a hurry. I can understand that, but this was a trial.
MR BESANKO: Yes. There would not be two stages where the court would, in effect, be making a decision as to whether it would hear evidence or not. In our submission, the law in this country is clear that if it is a jurisdictional fact, the person challenging the decision can call evidence. Your Honours, the learned trial judge took the view that that was - - -
KIRBY J: Can I just ask on that, is that fundamentally because courts reserve to themselves the determination of jurisdiction and that that is a legal question which courts would not surrender, as the US Supreme Court has said, to the authority itself? It may reserve that in the name of the rule of law to the courts themselves.
MR BESANKO: Yes, it is, your Honour, and we submit that the only basis for deference must be in the Act itself. There is no justification for deference unless one can find it in the particular legislation concerned. There is no doctrine of deference that stands outside the relevant statutory provisions being considered.
Your Honours, the learned trial judge decided that the court would receive evidence and would decide for itself whether or not the development was a special industry and his Honour heard that evidence and made certain findings of fact, which I will come back to briefly.
GUMMOW J: Well, he granted an injunction.
MR BESANKO: Yes.
GUMMOW J: And made a declaration.
MR BESANKO: Yes, he did, your Honour.,
GUMMOW J: And that was set aside.
GAUDRON J: And presumably on the basis that the decision was void, a nullity.
MR BESANKO: Yes. His Honour took the view that, because the concurrence had not been obtained, then the decision was a nullity. The Full Court took quite a difference approach, although they did accept, as I said earlier, that it was a jurisdictional matter and indeed accepted that it was a jurisdictional fact. Could I ask the Court to go to the Full Court's discussion of this point at page 413 of the appeal books and his Honour Justice Bleby, speaking for the Full Court, discusses initially the distinction between judicial review and the remedies sought in this case, namely, a declaration and an injunction. But his Honour at the bottom of page 413 line 61 says that the:
role of this Court in its consideration of factual maters said to go to the jurisdiction of the tribunal or body whose decision is being challenged should be the same -
And then over on page 414, his Honour at line 17 says:
based on an alleged want of jurisdiction, the court would ordinarily make up its own mind as to whether the necessary jurisdictional facts existed before deciding whether or not to grant the injunction.
Then his Honour at line 26 says that:
In proceedings for judicial review involving challenges to the decisions of inferior tribunals based on alleged want of jurisdiction, the role of the court is less clear cut.
And his Honour goes on to say that the court:
can determine the jurisdictional facts -
for itself -
and is not necessarily confined to the facts found by the inferior tribunal.
And he refers to the relevant decisions of this Court on that matter. Then over on page 415, his Honour notes at line 25 that in fact the court has sat to hear and make primary findings of fact, and then at line 36 his Honour discusses why it is that the court would:
reserve such a right, particularly in regulation to specialist tribunals.
And his Honour refers to the judgment of Justice Mason, as he then was, in Reg v Alley.
GLEESON CJ: Just before you pass over what appears on the top of page 415, against No (3) in the quotation at the top of the page, there is reference to a consideration. Is that part of what is involved in this concept of deference that you were asked about earlier?
MR BESANKO: Is your Honour referring to the fact that the Commission was specially equipped?
GLEESON CJ: Yes.
KIRBY J: This will usually be the case, will it not, with whether it is an administrative body or even a specialist court, such as the Land and Environment Court; they were all Workers' Compensation Court, they accumulate knowledge over time.
GAUDRON J: But the point in that case was that the evidence was essentially the same and there was room for perhaps a difference complexion to be put on the facts, depending upon your specialist knowledge in the area.
MR BESANKO: Yes.
KIRBY J: Do you agree with his Honour's proposition that the approach should be the same and is in law the same, whether it is an application for a declaration and injunction, which is a remedy of the Chancery Courts or a request for judicial review out of the prerogative, which is a remedy of the King's Courts?
MR BESANKO: We do, yes.
KIRBY J: Has the law in Australia proceeded to rationalise those two remedies, though they came from two different historical streams?
MR BESANKO: I do not think it has, your Honour.
KIRBY J: Is that the purpose of this proceeding, or one of the purposes, to consider that question? Does it necessarily fall for decision in this case, or is Justice Bleby's discussion of the matter simply an interesting legal background that does not fall for decision in this matter?
MR BESANKO: I think the latter, your Honour; I do not think it does fall for decision. I might mention that Justice Debelle in his judgment, which I think is case No 2 on our list of authorities, said that a declaration and injunction were more appropriate than judicial review proceedings because of some perceived limitations on the hearing of facts on a judicial review proceeding. But, your Honour, we do not seek to draw a distinction; we submit that the position arrived at by Justice Bleby is one that we do not seek to argue against.
KIRBY J: Has there been any discussion in the English cases of the coalescence between the doctrine of equity and the doctrine of judicial review or in academic literature that you are aware of?
MR BESANKO: Not that I am aware of, your Honour.
KIRBY J: It is sure to be there somewhere.
MR BESANKO: Yes. There certainly have been decisions dealing with procedural aspects of judicial review, for example, whether one can get discovery on judicial review proceedings.
GUMMOW J: In England it all now turns on Order 53, does it not, which is a coalescence, as I understand it?
MR BESANKO: Yes. And I think, your Honours, the decision in O'Reilly v Mackman deals with this. I do not have the reference to it, but I will provide that to the Court, but it deals, I think, with Order 53 and the relationship between the judicial review remedies. Your Honours, his Honour at page 415 says that:
There is good reason why the Court should reserve such a right -
And the right he is referring there to is to take evidence and make primary findings of fact, particularly in relation to specialist tribunals and his Honour then sets out - - -
GAUDRON J: "Reserve" is hardly the word, is it?
MR BESANKO: It is not the right word, with respect to his Honour; it is not a question of reserving the right. In fact, the court, in our submission, certainly would have the right and indeed, we would submit, would have the duty to receive the evidence if there is a competent and proper challenge to the jurisdiction of the court. So that it is not appropriate to talk of reserving the right to receive evidence.
GUMMOW J: The question really is that your client complains that the Collex people are disobeying or are threatening to disobey the law.
MR BESANKO: Yes.
GUMMOW J: They are doing something by way of the development which, in fact, is forbidden, and they say, "We as the council have a sufficient interest to give us standing to seek injunctive relief to stop them disobeying the law".
MR BESANKO: Yes.
GUMMOW J: . It is not a question of error of law in the face of some record in the Commission.
MR BESANKO: No, your Honour.
GUMMOW J: It is not a question of what was on the record in the Commission; it is what these people are allegedly now threatening to do.
MR BESANKO: Yes.
GUMMOW J: They, by way of answer to that, would set up the approval they had.
MR BESANKO: Yes. At page 416 his Honour starts to deal with the sort of matters that he considered were relevant to precisely what approach the court should take and at line 37 he says that:
where planning issues and questions of assessment and judgment are concerned, this Court should give considerable weight to the decision on such matters of a specialist tribunal. The proper classification of this development as a "special industry" includes a qualitative assessment of the likely effect on occupiers of one piece of land of an activity carried out on another piece of land.
So that is the first factor that his Honour suggests is relevant to the proper approach. His Honour then cites from a decision of the South Australian Full Court and then over on page 417 - - -
KIRBY J: That was Justice White in the Full Court, was it?
MR BESANKO: Yes, your Honour, and he also sets out a passage from Chief Justice King. Now, his Honour then at - - -
GUMMOW J: The court is not supervising the legality of the Crown planning process; it is not supervising anything.
MR BESANKO: That is so, your Honour.
GUMMOW J: It is restraining an apprehended breach of the statutory provision which forbids engagement in development activities without consent.
MR BESANKO: Yes. Then at line 35 his Honour says:
Those passages seem to me, with respect, to encapsulate the proper role of this Court in dealing with judicial review applications which seek to attack the jurisdiction of a planning authority to make a determination which is under challenge, and where the challenge to jurisdiction involves factual and planning issues. In my opinion, the same approach should apply where the challenge is by way of declaration and injunction.
So his Honour has clearly, in our submission, accepted that the matter is jurisdictional and that it is a matter - - -
GUMMOW J: But there are two elements of jurisdiction. One is: what was the Supreme Court on about, what was the nature of the action in the Supreme Court, what was its jurisdiction?
MR BESANKO: Yes.
GUMMOW J: That is not explained really. Then the question is: what was the Commission about?
MR BESANKO: Yes, that is so, your Honour. The approach that the Full Court took to the jurisdiction of the Commission was - - -
GUMMOW J: It never explained first what its jurisdiction was, as far as I can see.
MR BESANKO: Well, your Honour, in an indirect sense they did, your Honour, because they said that they would reserve the right to hear factual evidence but that they would not, in effect, hear that evidence unless the party challenging the decision was able to show, on the material before the Development Assessment Commission, that there was a gross dereliction of planning duty. In the end, your Honour, that is what one can perhaps spell out of the reasons of the Full Court.
GUMMOW J: Where is that crucial passage?
MR BESANKO: Your Honours, there are two passages. At page 420 at line 49 his Honour says:
Even where there is alleged to have been a serious departure (in planning terms) from the requirements of the Act and Regulations, such departure, in the words of Chief Justice King, will have to be discerned plainly by the court without the necessity of its descending into the planning merits. This is even more so in this case bearing in mind the time at which the determination had to be made.
GAUDRON J: The critical passage though is at line 23, is it not:
it is not a matter where this Court can substitute its own finding of fact, based on evidence it hears, for that of the DAC.
MR BESANKO: Yes, your Honour, although we would apprehend that that is a conclusion that follows from the test as to when the court would interfere that is formulated by his Honour.
GAUDRON J: But the passage to which his Honour referred in the industrial case is a case where the evidence was the same, in essence, in both tribunals and a value judgment had to be made, and the question was whether you would substitute a value judgment for that of the value judgment of a tribunal with specialist expertise. It is quite a different question from here. The evidence was not the same, was it?
MR BESANKO: Yes, your Honour, but the test that his Honour formulated, as it seems to us, is the one that is set out at the bottom of page 420, and that is that there needs to be:
an obvious and clear departure -
and one looks back as to a departure from what, and his Honour is referring there to a departure from the requirements of the Act and regulations and that:
without such an obvious and clear departure, the court on judicial review will defer to the judgment of the planning authority on planning issues.
So the test his Honour is formulating is: can one on the material before the decision maker discern an obvious and clear departure from the provisions of the Act and regulations? If one cannot, then that is the end of the matter; one does not get to the question of any evidence.
GUMMOW J: Will one reject a tender of evidence? That is what it comes to, does it not?
MR BESANKO: Yes.
KIRBY J: How could you do that though? You are in a court and a party is there seeking an injunction and it tenders the evidence. Do you say there is some rule of evidence law or some practice of courts that they will not receive the evidence until there is a prima facie case made on the face of the decision of the tribunal or authority below; is that how it works? This is the problem, you see, of two doctrines, one of which comes from the King's Courts confining the exercise of the prerogative, to the record normally, unless you are entitled, as in natural justice cases, to get evidence in; and a doctrine that is developed in an entirely different court for different purposes in the Chancery Courts for injunctions. I mean, how can you import some rule of deference to a judge who is asked to receive evidence in support of a claim that a body or authority or tribunal has acted illegally? There may be reasons in the exercise of discretion not to give remedy, but you are taking the step a couple of steps earlier, when the evidence that is being tendered in support of a case.
MR BESANKO: Your Honour, our submission would be that on an injunction or declaration the court would receive the evidence, there would not be any hurdle erected that one had to jump before evidence was received and that the judicial review remedies both in England and in Australia have come far enough that the court would receive the evidence on a judicial review application as well.
KIRBY J: Yes, but it is the entitlement of any party to go to a court and put its case in its best possible way and it would not be surprising that the remedies that are provided in the King's Courts tradition may be different from those that grew up in an entirely different jurisdiction in Chancery and that, if a party thinks there are advantages in proceeding by the Chancery remedies, then that is its entitlement. It would not be surprising really that they might lead to different results.
MR BESANKO: Yes. Certainly, your Honour, in relation to an injunction or declaration, which is what we had here, the court would receive the evidence. There is no question, in our submission, of the court saying - - -
KIRBY J: And therefore, as Justice Gaudron points out, the decision is being made on different evidence than the decision of the tribunal or authority which acts on its own evidence and its own information and sometimes from its own accumulated knowledge and expertise.
MR BESANKO: Yes.
KIRBY J: That is the problem of reconciling what a court does, which does not have these so-called advantages, or certainly different evidential base.
MR BESANKO: Well, certainly once the court received the evidence, it is hard to see how there really could be any deference unless the evidence left the matter doubtful at the end of the day and the court said, "Well, we'll defer, in the case of doubt, to the specialist tribunal", but - - -
HAYNE J: Or perhaps, "unless the issue is one of value judgment".
GAUDRON J: Yes, put certiorari to one side, because there are special considerations there. The real question adverted to in those industrial cases is what finding of fact with respect to the jurisdictional fact the reviewing tribunal will make when the finding of fact may depend on value judgment type considerations. It is not a question of whether evidence is received or is receivable; it is a question of how you make the final finding of fact, is it not?
MR BESANKO: Yes, your Honour; we submit that that is the position. Your Honours, at the bottom of page 417 is one statement of the test that his Honour formulated. Another, and it may be that here his Honour has gone further, is at page 424. His Honour, after referring to the material that was before the Development Assessment Commission at about line 10, says at line 15:
A different view of the relevant planning considerations might justify a different conclusion, but that does not require resolution or justify intervention by this court on judicial review. It would have to be an obvious dereliction of its planning duty, and that is not apparent in this case. There was therefore no reason for this Court to interfere with that determination.
But the words we emphasise, if the Court pleases, are, "It would have to be an obvious dereliction of its planning duty, and that is not apparent in this case".
HAYNE J: I do not understand what that expression means in this context.
MR BESANKO: Yes. The best one can do, your Honour, is to think that what his Honour is referring to is that one looks at the evidence before the Development Assessment Commission, one looks at the definition and one says, "Have they simply not applied their minds at all in any way to the requirements of the regulation? They simply haven't carried out their duty to assess the facts in light of the definition in the regulations".
HAYNE J: We have to begin, do we not, with the statute and the regulation, identify what the issue was and what is the alleged illegality or unlawfulness that Collex are said to be about to commit and that requires restraint?
MR BESANKO: That is so, your Honour, but the approach taken by the Full Court was that there needed to be an obvious and clear departure or a dereliction of planning duty and, in our submission, your Honour, that simply is not the appropriate test. But having formulated that test, his Honour then went on to say, "Well, you don't receive evidence. It is simply inappropriate for the court to receive evidence", and could I in that context ask the Court to go back to page 417 and ask the Court to note at the bottom of page 417 again the reference by his Honour at the very bottom of the page to the fact that the court will "always reserve the right to make its own findings". Again, that use of the words "reserving the right". At page 418 his Honour says that:
On its face, the approach which I have discussed should apply to a consideration of s35(3).....where, as in this case, it is alleged that the planning authority has made a wrong factual decision as to whether or not a development is a non-complying development, and the purported approval does not have the concurrences required by that subsection.
Could I ask the Court to note the terms of section 35(3). Your Honours will have a white folder, I think, from the respondent which has behind tab 7 a copy of the Development Act as it was at that time.
GAUDRON J: Tab 8, I think.
KIRBY J: Tab 7 is the judgment of Justice Brandeis.
MR BESANKO: I am sorry.
KIRBY J: Which is always worth reading if we get bored with the Act.
MR BESANKO: Your Honours, section 35 is under the heading "Special provisions relating to assessment against a Development Plan" and it deals in subsection (1) with a development which is "of a kind described as a complying development", and your Honours will see that:
If a proposed development is.....a complying development -
then it:
must be granted a provisional development plan consent.
Could I jump over subsection (2) for the moment. I will come back to that. Subsection (3):
A development that is of a kind described as a non-complying development under the relevant Development Plan must not be granted a provisional development plan consent unless -
The relevant one is subparagraph (a):
where the relevant authority is the Development Assessment Commission -
as it was here -
the Minister and, if the development is to be undertaken in the area of a council, that council, concur in the granting of the consent -
and it was common ground here, your Honours, that neither the Minister nor the council concurred in the granting of consent. We respectfully submit that that subsection is imperative and poses an objective test. That is, a test of whether or not the development is non-complying in fact. Subsection (2), your Honours, provides that:
a development that is assessed by a relevant authority as being seriously at variance with the relevant Development Plan must not be granted consent.
The important point of distinction, in our submission, is that subsection (2) talks of something "that is assessed by a relevant authority", so it injects into that subsection the opinion or assessment of the relevant authority. It links back to the obligation of a planning authority under section 33 to assess the development against the provisions of the appropriate development plan.
KIRBY J: Those words "seriously at variance" raise evaluative considerations which recognise, in a sense, the expertise of the relevant authority to make a decision.
MR BESANKO: Yes. Your Honour, the case that his Honour Justice Bleby referred to of Reg v Weeks where he set out the two passages, one from JusticeWhite and one from Chief Justice King, concerned a section under the previous Act which simply said:
a development that is.....seriously at variance with the.....Development Plan must not be granted consent.
And Chief Justice King discussed whether or not that raised a jurisdictional matter and he set out the arguments for and against. In the end his Honour said that it did raise a jurisdictional matter, however inconvenient that might be, and his Honour went on to say that the court would defer to the judgment of the planning authority, and that is the passage we have in the judgment. That subsection was changed when the new Act was brought in so as to provide, as it does now, that it talks of a development that is assessed by a relevant authority, so it injects a subjective element into the assessment.
KIRBY J: But you are not trying to breathe life into Liversidge v Anderson, are you, and say that because it was assessed by the relevant authority as being seriously at variance, that there is no role for the courts at all?
MR BESANKO: No, I am not, your Honour.
KIRBY J: Well, what role can there be, given that the statute has been amended and incorporated assessment by the relevant authority and by reference to a very evaluative consideration, namely, being seriously at variance? Apart from talking in waffly terms about deference and so on, I mean, what are courts to do in that circumstances when called upon to say that there was no jurisdictional fact, that there is an error in the jurisdictional fact?
MR BESANKO: Your Honour, subsection (2) does not clearly arise directly in this case because we are concerned about subsection (3). The question of whether or not this is a non-complying development and concurrence has been obtained. The point of referring to subsection (2) was to contrast the wording of the two subsections, one now expressed in terms of an assessment having to be made by the relevant authority, and the other referring to the matter in objective terms, that is, as a matter of objective fact, is this a non-complying development? It is a non-complying development if it is a special industry.
The other sections, whilst your Honours have the Act, that are relevant in this case is section 38. This section deals with "Consultation" and your Honours will see that it divides developments into three categories: category 1, 2 and 3. Category 1, no advertising; category 2, limited advertising and no third party rights of appeal; and category 3, advertising generally and rights of appeal by any member of the public. The way in which the Act and regulations deal with the matter is to specifically identify uses that fall within categories 1 and 2 and then say that anything that does not falls within category 3. Your Honours will see that in section 38(2)(b).
HAYNE J: Does anything turn, for present purposes, on the operation of section 38? I know it may have important consequences for the parties but does it affect the disposition of the litigation between them?
MR BESANKO: It does to this extent, your Honour. Not only did we say that because this was a special industry and a non-complying development it needed a concurrence under section 35(3), but we also said that if it had been classified as a special industry, it would have been a category 3 development, and I do not think there is any dispute about that, it would have been advertised.
HAYNE J: But the consequence flows from the same premise as the other consequences to which you have pointed?
MR BESANKO: I think that is so.
HAYNE J: So, if the premise is good it is good, if it is bad it is bad?
MR BESANKO: Yes, I think that is right. Your Honours, I might go back to the judgment of the Full Court at page 418. His Honour really seems to deal with the topic in stages. He reaches a point and then expresses a view and he does that at page 418, although he goes further later in the reasons. His Honour says at line 15:
The subsection appears to be absolute in its terms, namely that if a development is of a kind described as a non-complying development, it must not be granted provisional consent unless the relevant conditions are fulfilled. Without more, on the authorities, this Court should therefore reserve the right to itself to inquire into the relevant facts and to decide the jurisdictional facts, deferring in grey areas of uncertainty to the practical judgment of the planning authority.
KIRBY J: Now, just pausing there, would that not gain some force on the differentiation between subsections (2) and (3), subsection (2) being variable by two matters, namely, assessed and seriously at variance, whereas subsection (3) is in much more objective language? It is either non-complying or it is not.
MR BESANKO: Yes, your Honour.
KIRBY J: So, so far so good. You do not contest what his Honour said at this stage?
MR BESANKO: No, in fact, aside from the use of the word "reserved" the right, we would not take great issue with what his Honour there says.
HAYNE J: You would not take issue with "deferring" in this context?
KIRBY J: In "grey" issues?
MR BESANKO: We would not to this extent, your Honour. We would say evidence could be called and, in fact, the court should receive and hear the evidence. If at the end of the evidence the matter was finely balanced, then the court might say, "When in a case of doubt, we will defer to the specialist tribunal".
GUMMOW J: Defer to them in what respect?
MR BESANKO: Defer to them in the sense of, in the case of doubt, not interfering with the decision.
GLEESON CJ: Could the evidence include opinion evidence involving the expression of an opinion on the matter as to which the authority was to form a judgment?
MR BESANKO: Yes, it could.
HAYNE J: Take it out of the town planning area, put it into a corporate context, the relevant question being whether particular information is price sensitive information, a question of value judgment. What is meant by deference in a court deciding whether a jurisdictional fact, namely, whether information is or is not price sensitive, is made out?
MR BESANKO: If the court heard evidence, for example, from competing experts and at the end of the day they found it very difficult to decide between the experts, it might defer to the authority, or might defer to the decision below in those circumstances. But it is hard to see, your Honour, if evidence is called, how there really can be any doctrine of deference.
GUMMOW J: I think the doctrine of deference is about something else. I think the doctrine of defence is all about the question which arises in the United States as to whether the instrumentality or the administrative body in performing its tasks has provided substantive due process to the parties before it. It is a means of curbing - it comes out of the new deal - curbing judicial interference with the activities of those various regulatory bodies where the ground of judicial intervention was said to be a constitutional ground, namely, the denial of due process. The Americans devised this curb on that by talking about deference. It is built on another foundation - that is how it seems to me - no immediate analogy here.
HAYNE J: But the availability of the analogy depending upon what issue is joined in the action or proceeding in the Supreme Court and if issue is joined, judges have no choice except to decide the issue on whatever evidence is brought.
MR BESANKO: There have been references in the Canadian cases to - I am not sure they have called it a doctrine of deference, but certainly situations where the court says, "Well, we won't interfere and we will have regard to the fact that the nature of the question that the inferior body has to decide, the qualifications and so on and so forth and the - - -
GUMMOW J: There are cases in this Court that says the Court will have regard to the expertise of the Register of Trademarks and working out whether trademarks are too close to another trademark.
HAYNE J: There is a whole raft of corporate cases about appeals from former office holders like the registrar of companies and the like. Do you defer to his or her decision? It seems to me that it is in a different field of discourse. Here, issue was joined and at some point, no doubt, in your argument you will explain exactly what you say the issue was that was joined between the parties.
MR BESANKO: Yes, your Honour.
GLEESON CJ: One practical way of testing it would be to look at what particular passage in the judgment of Mr Justice Debelle was regarded as exhibiting the want of appropriate deference. Did the Full Court indicate the point of departure from his reasoning?
MR BESANKO: They did by saying that it was inappropriate for his Honour to conduct his own inquiry and they went on simply to look at the material that was before the Development Assessment Commission, so they did not consider his Honour's findings.
GUMMOW J: Your complaint really is that the Full Court has not discharged its task of the appeal from Justice Debelle.
MR BESANKO: Yes.
GUMMOW J: So you have to say it should go back from us to the Full Court.
MR BESANKO: That is so, your Honour, because his Honour Justice - - -
GUMMOW J: To test whether Justice Debelle's findings of fact were challengeable in some way.
MR BESANKO: Indeed, and his Honour Justice Debelle - - -
GUMMOW J: You say he got it all right.
MR BESANKO: Yes, but his Honour made findings of fact about how many times a year there would be offensive conditions and then he applied the definition of "special industry" to those findings of fact and said it was a special industry, therefore, the injunction would go.
GLEESON CJ: I may have misunderstood his reasoning but I thought he said there really is not any serious dispute in the evidence about the number of occasions on which there will be offensive omissions.
MR BESANKO: He did say that, your Honour, yes. He did say that as between the experts, it was common ground that there would be, I think he said, between three and five occasions per year in relation to the residential properties and a larger number in relation to the industrial properties.
KIRBY J: But does that not then present the problem that a judge sitting in the midst of criminal trials and all sorts of other matters is substituting his evaluation of three or five occasions a year for a body which is looking at the whole range of applications of this kind and looking at the whole State and looking at the whole way in which this activity impinges on the State, as the Act contemplates, substituting his evaluation for that of the body which Parliament has endowed with this responsibility?
MR BESANKO: Yes.
HAYNE J: Well, the question is: has it? The question is: has Parliament endowed this body with this responsibility or no?
GUMMOW J: There is no privative clause.
MR BESANKO: That is so, your Honour.
GAUDRON J: It is not expressed to be "in its opinion" or "if it forms the opinion that"?
MR BESANKO: No.
GAUDRON J: It is an objective test.
MR BESANKO: Yes. I will have to take the Court to regulation 16 in a moment, which was another provision that is referred to in the judgments below.
KIRBY J: But of its nature, would that not be a decision which involves evaluation of its very essence, of its nature - offensiveness and speciality, these are evaluative considerations, are they not?
MR BESANKO: It is, but it is a matter that the courts deal with from time to time on planning appeals and it is not a matter of policy, it is a matter of scientific evidence, assessing that evidence and making relevant findings.
HAYNE J: But this is not a planning appeal, is it?
MR BESANKO: No.
HAYNE J: This is an application for injunction.
MR BESANKO: Yes.
HAYNE J: I might say founded on some joinder of issue of which we will hear.
MR BESANKO: Yes, your Honour. Your Honours, having reached the conclusion that he did at page 418, his Honour then went on to, in effect, qualify that provisional conclusion by then looking at the terms of the Act and his Honour says that section 35(3) must be read as part of the overall scheme of development approval for which the Act provides. His Honour, in essence, and I will not read the passages, relies on two matters to reach his conclusions.
First of all, he says that the nature of the decision is such that a level of deference is called for, and secondly, he says that the decision is made early on in the process as to what type of development the Development Assessment Commission is considering and the Commission may receive more evidence down the track, in effect, and his Honour then said he had difficulty in seeing that the Commission ought to have to revise its decision upon receiving further information. So, his Honour concluded from that that Parliament must have intended that the decision be made at an early stage and on the material available at the time.
Now, having referred to those two points his Honour at page 420 line 12 says:
Regulation 16 is not cast in terms that suggest that the assessment or opinion of the DAC in this case is conclusive, or that if an opinion is genuinely formed the Court cannot go behind that opinion. Equally, however, it cannot mean that the validity of a determination under Regulation 16 depends on an objective assessment by this Court as to whether, after all the planning information is assembled and scrutinised, the development is or is not properly classified as a special industry.
GAUDRON J: You say the decision is to be made on the basis of the evidence in the court.
MR BESANKO: Precisely, yes. Then his Honour goes on to the passage that your Honour Justice Gaudron referred to earlier and says that the court cannot substitute its opinion on the basis of the evidence it hears for that of the DAC. His Honour at line 29 says that:
By doing so it would be inviting jurisdictional challenges to similar Regulation 16 determinations -
and we respectfully say that, in effect, so what, if that is the position. If it is a jurisdictional fact and it is an objective fact, then that matter can be challenged and the party can call evidence.
KIRBY J: Well, you say "So what", but does that not undo the scheme that the Parliament has established? I mean, there is set up this body but its decisions really will be set at nought because everybody with some fresh, different, or nuanced evidence will just come to a court and relitigate the whole thing. That may be what is permitted but it seems an odd result from the point of view of the operation of the statute and planning more generally.
MR BESANKO: Yes. Well, there is that consideration, your Honour, although the remedies, of course, are discretionary, so that if there was any delay or a party had acted on the basis of a consent, the remedies could be refused. His Honour then sets out the passage I referred to earlier and then at page 421 his Honour then goes to the decision of the Development Assessment Commission and he looks at the material that was before the Development Assessment Commission. Could I refer the Court to two passages. Firstly, at the top of page 423 his Honour says:
It would appear that Mr Whitworth's reference to an average of four events per year relate only to the possibility of equipment failure which he had described in the letter as being "very unlikely -
Then, over the page his Honour says:
As I understand the material before the DAC in this case, the result contemplated by paragraph (d) of -
the definition -
might only occur if things went wrong. That was possible but unlikely.
Now, that is important because, whereas Justice Debelle had found that a certain number of events were likely, his Honour construed the material of the Development Assessment Commission and said that on that material the occurrences were unlikely, and your Honours will know that no reasons were given or need be given by the Development Assessment Commission. So, essentially, what his Honour did was look at the material and say, "Well, on this material, what were the likely findings?". The likely findings he sets out at page 424. That did not contravene the regulations, therefore there has been no obvious and clear departure.
Now, if we are correct in the submissions that we make, the matter would go back to the Full Court, (a) to consider whether the respondent's challenge to the findings made by Justice Debelle ought to succeed; and (b) whether their submission that even on those findings it does not fall within the definition of a special industry succeeds. One is a factual question and the other perhaps a question of mixed fact and law.
HAYNE J: How did the parties treat at trial the material that had been placed before the Development Assessment Commission? Was that material treated as evidence of the facts asserted and that the opinions expressed were there held? That is, was it treated as evidence in the proceeding or was it treated simply as evidence of the fact of expression of opinions and the like?
MR BESANKO: Yes, it was the latter, your Honour. But some of the people who have reported to the Development Assessment Commission and whose reports were before the Commission were called to give evidence.
HAYNE J: No doubt the parties were unkind enough to point to what they asserted were inconsistencies between what they had there said and said to the trial judge.
MR BESANKO: Yes, that occurred, your Honour. But Dr Grynberg, who your Honours might have seen referred to, provided a report to the Development Assessment Commission. He was called to give evidence. He relied on his report and he was cross-examined. Mr Whitworth who was an officer of the Environment Protection Authority, and he is referred to as making certain statements to the Development Assessment Commission, he was also called and he was cross-examined. So his Honour had that material, together with other expert evidence, both from our side and from the other side.
KIRBY J: Just before you were answering Justice Hayne, you were referring to what the orders would be, and you will have seen at the end of Mr Jackson's submission that he asks in the event that you succeed that the matter go back, which is your order 10.1 in the notice of appeal. Do you press order 8, that is restoration of the trial judge's orders, or do you concede that in the event that you succeed, the matter has to go back for the determination of the outstanding issue raised by the respondents' appeal?
MR BESANKO: The latter, your Honour. We think it does have to go back because there was a challenge to Justice Debelle's finding of a special industry.
GUMMOW J: So you do not press 8, but you press 10.1 on page 432?
MR BESANKO: Yes.
GUMMOW J: What is the relationship of this litigation to the litigation before Justice Debelle in 1994 that is reported in 63 SASR?
MR BESANKO: Your Honour, that was an earlier consent which was challenged on a similar basis. There have been three challenges, in fact, three consents were given, and the reported decision of Justice Debelle related to the second consent and the same matters were put forward to challenge that consent and in the end, your Honour, orders were made by consent, for various reasons that I do not need to go into, in those proceedings. But the importance of those proceedings, your Honour, is that in his Honour's decision in relation to those proceedings he sets out the approach that he thought was appropriate on the application, including the fact that one would hear evidence.
GUMMOW J: Except that the early one was for certiorari, was it not? It was prerogative orders in the nature of prerogative relief.
MR BESANKO: I think there were two proceedings, your Honour, in relation to that. There was an application for judicial review and the applicant also - - -
GUMMOW J: And the declaration, but no injunction.
MR BESANKO: Yes.
KIRBY J: Is the instant decision reported anywhere, or is the decision of the Full Court reported anywhere, or not?
MR BESANKO: The decision of Justice Debelle at first instance in this case, your Honour, is reported. I will give your Honours the reference. I do not have that at the moment.
KIRBY J: But does the sequence of three challenges and the prospect that that will become a common occurrence have anything to say to the way in which a court should approach the third challenge? Is this not one of the problems of planning law, that they get transferred out of the authority with the responsibility and spend their lives for year after year in courts?
MR BESANKO: I do not think so, your Honour. The first challenge succeeded on the basis that the person who made the decision did not have proper delegated authority. The second challenge was one where the respondent consented to orders, and that is the one that your Honours have the report of Justice Debelle, and then one had the third challenge when we finally got to the issue, in effect, as to whether or not this was a special industry.
Your Honours, his Honour Justice Bleby appears to find at the top of page 424 that, on the material before the Development Assessment Commission, things going wrong was possible, but unlikely. On that basis he found that there was no, as he put it, dereliction of planning duty. Our complaint is that his Honour should not have restricted himself to that material. He should have looked at the findings made by Justice Debelle and made a decision on the basis of those findings, and he never did. The Full Court never looked at whether the findings of Justice Debelle were correct. They never looked at whether, even accepting those findings, this was a special industry, and those matters, if we are successful, would need to be considered by the Full Court.
GLEESON CJ: But were the findings of primary fact made by Justice Debelle findings about matters concerning which there was a dispute? Was the dispute, in this case, above the primary facts, or was it only about the value judgment?
MR BESANKO: I am not sure, your Honour, I can give a yes or no answer to that. The experts said that this would occur a certain number of times a year. Justice Debelle found, "Well, that brings it within the terms of the definition". Mr Whitworth, for example, the officer of the EPA said that, yes, a stated average of four times per year, but that did not make the occurrence likely. It is hard to know, your Honour, in some of the evidence whether he is saying, "Well, it is not likely within the terms of the definition", or whether he is saying, "It is not likely to occur". But on his Honour's findings that there was really no issue as between the experts, the question then was, "Well, on those facts, did it fall within the definition of a specialist industry?".
If I could just refer to his Honour's evidence in that regard. Your Honour might have in mind the passage at page 384 of the appeal book at line 14, and in particular where his Honour says:
The disagreement between the experts as to the frequency of the offensive emissions is slight.
We would say, your Honour, that there was very little disagreement between the experts and the real issue was the one that his Honour goes on to pose for himself, that is, accepting that evidence, did that bring it within the definition? But that is not a matter that the Full Court addressed in its reasons.
GUMMOW J: Have we got the notice of appeal to the Full Court?
GLEESON CJ: Page 389, I think.
MR BESANKO: Yes, your Honour. Ground 2, we think, raises a challenge to the finding that, even accepting the definition formulated by his Honour Justice Debelle, the facts did not fall within the definition.
GUMMOW J: I am just wondering what grounds of appeal in the Full Court, you say, were not dealt with, because of the particular course they followed, so that there are still outstanding grounds of appeal.
MR BESANKO: At least one, your Honour.
GAUDRON J: Number 3, is it?
MR BESANKO: At least one, your Honour.
GAUDRON J: Number 3?
MR BESANKO: Yes, so that at least a challenge- accepting the findings, a challenge to his Honour's holding that it fell within the terms of the definition, which is probably ground 2, and probably a challenge to the findings, which is ground 3.
GUMMOW J: Thank you.
MR BESANKO: If I could go back to the Full Court judgment at page 423, his Honour says at line 16, having reviewed the material before the Development Assessment Commission:
In those circumstances can it be shown, in accordance with the approach which this Court should now take, that the determination of the DAC under Regulation 16 miscarried?
Then he goes on to talk about the fact that it acted upon information, and expert information.
Your Honours, regulation 16 is in the book of authorities of the respondent, that appear behind tab 9, I think, the regulations. Your Honours will see that subregulation (1) is expressed in terms requiring:
The relevant authority must determine the nature of the development, and proceed to deal with the application according to that determination.
And then subregulation (2) deals with what is to happen in the case of a non-complying development. Now, his Honour, approached the matter emphasising regulation 16 and the fact that the decision under regulation 16 needed to be made at a very early stage of the proceedings. We say that the relevant legislative provision in section 35(3) and the matter should be determined by that section, not by regulation 16.
HAYNE J: What consequences follow from regulation 16(2)? First, the relevant authority must, by notice in writing, inform the applicant of its conclusion. What, if anything, follows from that informing?
MR BESANKO: The applicant then has to provide a statement in support of the application and the Development Assessment Commission, having received that statement, has the power to refuse the application without it going any further, or it can go on to deal with the application. Your Honour will see that from regulation 17 - - -
KIRBY J: Is that not the way the section in the Act and subregulation 16(2) work together, that it has the obligation under the Act to make a decision, and if it is of that opinion, it is under the obligation to give the notice, so that the opinion is related to the giving of the notice? That would preserve the validity of the subregulation, would it not?
MR BESANKO: Yes, but it would not mean that the question of whether or not a concurrence was required was a subjective issue.
KIRBY J: It does not purport to do that. It governs the giving of the notice.
MR BESANKO: Indeed, yes. In fact, your Honours, regulation 17(1), if I might refer to that, puts an obligation on a person who applies for consent in respect of a development plan to "provide a brief statement in support of the application". Subregulation (2) goes on to provide that if, in fact, a statement is not provided then the period between the non-provision and the request by the relevant authority is not to be taken into account. So that the scheme is that, in the case of a non-complying development, an applicant must decide whether he is applying for a non-complying development and, if he is, to provide "a brief statement in support of the application". If he does not do that and the authority is of the opinion that it is a non-complying development, then it must give him notice of that fact. Your Honours, subregulation 16(2) has a limited operation, limited to the giving of notice to the applicant in the circumstances indicated in regulation 17.
Your Honours, the Full Court then referred to the judgment of Jurkovic v Development Assessment Commission where an earlier Full Court had considered what the word "likely" in the definition of "special industry" required in terms of evidence. Then, at the top of page 424, his Honour made his finding as to the effect of the material before the Development Assessment Commission. He did that, your Honours, on the basis of the minutes that were of the meetings of the Development Assessment Commission. I refer to those briefly.
There were three meetings of the Development Assessment Commission. The first was on 8 August 1995 and the minutes of that meeting appear at page 337 and following. The second was on 12 September 1995 and the minutes appear at page 342. It was at that meeting that the Commission decided the nature of the development and what one has is details of the discussion that took place and then the resolution. Then, finally, there are the minutes of 9 November 1995, which appear at 347 where the Commission made its decision to grant consent.
Your Honours, in our submission, the appellant should have been permitted to call evidence on the question of whether or not this was a non-complying development. Without taking the Court to the authorities, I refer to cases 8, Blakeley; 13, Ludeke; and 14, Alley as all cases which support the proposition that, in the case of a jurisdictional fact, the court will inquire into the facts for itself and will hear and receive evidence, even evidence that was not before the inferior tribunal or body.
HAYNE J: You cast that proposition in terms which do not refer to the nature of the proceeding in which the issue arises. Do you need to go so far as to put the proposition as broadly as that?
MR BESANKO: Is your Honour referring to the fact that these were claims for declaration and injunction?
HAYNE J: Yes, at least at first blush, it seems to me, that the issue is: can, on those proceedings, framed as they were, evidence of this kind be led? If it can be led, it is presumably because it goes to an issue in the proceeding.
MR BESANKO: Yes. Probably the proposition does not need to be as broad as that. If one says that the claim for a declaration and injunction, providing it went to an issue, were different, in effect, from the judiciary review proceedings. If one approaches the claim for a declaration and an injunction in a different way, and it is an issue in the proceedings, then of course a party would be permitted to call evidence.
KIRBY J: That does definitely then take the declaration and injunction off on a different tangent to judicial review?
MR BESANKO: Yes, it does.
KIRBY J: And you would say that that is just because they come from a different history and have a different purpose, and though there is a discretion at the end of each of them, they just have to proceed in a different way. That is not the first time that has happened in the inherited law from England.
MR BESANKO: Yes. I do say that, your Honour, although I do accept that earlier I said that there was no reason to distinguish between the two.
GUMMOW J: Well, in New South Wales, for example, and I think it may be the same in other States, this would not happen because the traditional jurisdiction of the Equity Division has been taken away by Parliament. It is all mixed together and put into the Land and Environment Court, but you do not have that system here.
MR BESANKO: No, your Honour.
HAYNE J: So we are driven back to what you were asking the Supreme Court to do and what the issues were there.
MR BESANKO: Yes. The summons for relief the Court will find in volume 1 page 1.
HAYNE J: At least at first blush it does not tell us much about what the issues are.
MR BESANKO: No, there was not a statement of claim in these proceedings, your Honour. The matter proceeded by way of affidavit, although later in the piece - - -
KIRBY J: But where is the summons?
MR BESANKO: The summons is at page 1, volume 1, your Honour, although later in the piece there were agreed facts, but there was an affidavit in support of the summons of Mr Davos. That appears, your Honours, at page 4. After he sets out the history of the matter, at page 21 of volume 1 - - -
KIRBY J: Can I just ask you before you go further. The summons seeks a declaration that certain things are ultra vires. Now, Justice Bleby says that it ought not to depend upon what originating process you bring, whether you bring a claim for judicial review or a claim for a declaration. Is there scope, at this stage of the historical development of the two, and especially the expansion of administrative law, to rationalise this development of the law and to say, it ought not, and it does not, in Australia involve a difference and if that means that judges before they receive evidence in an application for a declaration which is in effect, or very similar to a judicial review, should, at that stage, before receiving the evidence, exercise the restraint that is called for because it, in effect, invites the judicial branch of government to substitute opinions on jurisdictional facts for the opinions formed in the Executive Branch of government. Now, is there scope for that rationalisation, or is it just too late, given the history of the development of the two remedies?
MR BESANKO: The only matter that we can think of, your Honour, at the moment in relation to that is that our rule 98, which deals with judicial review, enables one to include in a claim for a judicial review claims for declarations.
GAUDRON J: But if you had sought prohibition in this case, you would have been able to bring evidence, would you not?
MR BESANKO: We submit so.
GAUDRON J: If you had restricted relief to certiorari there might have been a problem, but if you had sought prohibition you would have been in the same position surely.
MR BESANKO: Yes, normally, as we understand it, your Honour, whether this is for historical reasons, I am not sure, it is normally done on affidavit evidence when there is a judicial review application, but the authorities are clear that one can bring forward evidence. Generally it is done by way of affidavit in the case of judicial review.
KIRBY J: It might be helpful for us to have the photocopy of the pages of the practice relating to that rule of the South Australian court, unless it is already with us. So if Justice Gaudron's point is good, as it seems to be, then you would be in the same position in a judicial review case and you would bring the evidence anyway. Out the window goes deference. Into the window comes evidence and the judicial obligation to resolve the issue joined.
MR BESANKO: Yes. But, your Honour, could I refer the Court to rule 98.01(3) which provides that:
Declarations or injunctions may be sought.....granted on a summons for judicial review.
KIRBY J: I suppose an argument for this development would be that one would not want to inflict the historical learning on record upon the whole scope of the remedies of administrative law, still less on the declaration and injunction developed in Chancery because of the narrow way, and perhaps artificial way, in which that has been construed and that, therefore, if there is a choice one should go the Equity way, as often one does, because that allows a court then to deal with the matter on the best evidence available.
MR BESANKO: Yes, your Honour. The other matter, if I might refer to - - -
GUMMOW J: Now what was the character of the summons in this proceeding? Was it under rule 98?
MR BESANKO: No, it was not.
GUMMOW J: How does one tell?
MR BESANKO: There would be a statement at the end of the summons saying that it was brought pursuant to rule 98. That is required by another rule.
GUMMOW J: What is the other rule?
MR BESANKO: I will find that, your Honour. But could I - - -
HAYNE J: Rule 98(3) provides that summons seeking judicial review may only be served with leave.
MR BESANKO: Yes. It might be helpful, your Honours, if I asked your Honours to go to the judgment of Justice Debelle, because he deals with these procedural matters, and this is the judgment in the earlier proceedings. It appears behind tab 2 in the book of authorities. This was a judgment delivered upon an application which was made by Collex and, indeed, by the Development Assessment Commission, for his Honour to answer two questions. Your Honours will see those two questions set out on page 33. The first was:
Does the affidavit....disclose grounds which, as a matter of law, could justify the granting by the Court of any of the relief sought by the plaintiff?
And his Honour answered that in the affirmative. Then, importantly, (b):
Should this Honourable Court, as a matter of law, hear evidence and determine for itself whether or not the developments -
and so on and, again, his Honour answered that in the affirmative.
KIRBY J: Does that mean that there were, in fact, proceedings for judicial review but of the South Australian variety under paragraph 98.01(3)?
MR BESANKO: No, it does not, your Honour, and if I could ask your Honour to go back to page 29. His Honour at about point 3 set out the submission that was made by the Development Assessment Commission in that case and his Honour said that he did not accept that submission but in the course of dealing with the submission he discussed the appropriate remedy. Now, if your Honours go over to page 30 his Honour said at about point 4:
Generally speaking, the remedy of certiorari is not a suitable remedy by which to raise questions of fact for this Court to determine de novo. Thus, where questions of jurisdiction turn on disputed questions of fact about which there is a conflict of evidence, the court will generally decline to interfere -
Then his Honour went on to say:
proceedings which seek declaratory orders do not suffer from the same limitation.
Then his Honour refers to the wide jurisdiction "to grant declaratory" orders.
GUMMOW J: Justice Dawson's decision in Oil Basins has a discussion about it.
MR BESANKO: Yes, your Honour, and then at the bottom of the page his Honour talks about:
early decisions which limited the role of the declaratory order on questions of fact -
and then he concludes on page 31, the end of the first paragraph on that page:
It can, I think, fairly be said that the action seeking declaratory orders is firmly established as a means of determining disputed questions of fact in town planning matters.
Now, there is then an important passage on page 32. His Honour says:
In action No 645 of 1994 the Council primarily seeks orders in the nature of declarations. However.....the terms of r 98.01, which, they submitted, should be interpreted strictly. They submitted that the fact that the Council primarily seeks declaratory relief and then an order in the nature of certiorari, cannot alter the terms of r 98.01 which provide that an order in the nature of certiorari shall be brought by way of judicial review by summons and an application for declaration may be sought also in the summons. The application for declaration is, therefore, incidental to the application for judicial review -
and so on and his Honour expressed the view that that was a very "technical approach" but he noted in the middle of the page that:
The Council then issued another action.....in which -
it sought declarations. Now that, your Honour, was in relation to the second challenge so there were, in fact, two proceedings. One was judicial review proceedings which had coupled to it a claim for declarations and then there were a second set of proceedings which simply sought declarations and when the third consent was given, the Council simply issued proceedings for declarations to get over any difficulty that might arise by way of the judicial review proceedings.
KIRBY J: So do you say that the document at page 1 is not an application for judicial review because it merely seeks declaratory and injunctive relief?
MR BESANKO: Yes.
KIRBY J: And it is not made an application for judicial review by the reference to ultra vires which is a common judicial review expression?
MR BESANKO: That is so, your Honour. The affidavit, your Honours, which appears in volume 1 of the appeal book sets out the history of the matter but if your Honours were to go to page 21, paragraph 38 sets out the assertions, in effect, that were made by the Council in the proceedings. So that had there been pleadings, the pleadings would have followed the allegations that are set out in paragraphs 38 through to paragraph 41. Paragraph 42 sets out the relief sought and follows a similar form to the summons.
Your Honours, in paragraph 26 of our written submissions we set out the reasons why we say that no deference was appropriate in this case and the first one, and one of the most important, is that the evidence did not remain the same. The findings of the trial judge differed from the findings of the Development Assessment Commission.
The other ones, your Honours, speak for themselves and I do not want to say anything more about them except perhaps 26.5 which deals with the expertise of the Development Assessment Commission. Your Honours will see from section 10(3) that there are various fields of expertise which are required by different members of the Development Assessment Commission. The Development Assessment Commission, of course, is a planning authority but more often than not the relevant planning authority will be the council which consists of elected members and although the council would have access to expert's reports and advice, it would not have any particular level of expertise - its members would not have any particular level of expertise. So that the position in relation to the Development Assessment Commission is that there are differing areas of expertise. In the case of a local council there would be no expertise in its members.
GUMMOW J: What do you say to Mr Jackson's submission in his written submissions that the only relevant jurisdictional fact is the fact of the application?
MR BESANKO: We say it is wrong. Your Honour, we submit that the terms of section 35(3) are imperative, that a consent simply cannot be given unless the concurrence is obtained and it is expressed in those terms, your Honour:
A development that is of a kind described as non-complying development.....must not be granted a provisional development plan consent unless -
a concurrence is obtained. Of course, one has the situation where the decision by the Development Assessment Commission will affect another body. It will affect whether or not the concurrence is required by the council or from the Minister so that it is not simply a matter of the Development Assessment Commission deciding something in the course of conducting an inquiry that affects, perhaps, an applicant, but it also involves other planning authorities and that would be an additional reason, additional to the terms of the section, for saying that it was a jurisdictional matter.
GAUDRON J: There might be another aspect to the question Justice Gummow has asked you. Jurisdictional fact, as we understand it, has assumed central importance in relation to prerogative relief. There is, so far as I can see, no reason why it should have the same centrality in relation to injunctive relief where the question might simply be is this activity legal and if there is a whole chain, if you like, of illegal activity, including the way in which it is dealt with, that may be sufficient to grant an injunction according to ordinary principles even if it is not a jurisdictional fact.
MR BESANKO: Yes.
GAUDRON J: I do not know that you should adopt what I have said. I am just putting this to you as hypothesis, questioning the assumption that jurisdictional fact is the keystone here.
MR BESANKO: Your Honour, we would submit that it would not exclude jurisdictional fact. One would not construe or apply the remedies of declaration and injunction in a more limited sense so that one put out of account jurisdictional fact.
GUMMOW J: But if the Attorney-General came along as the moving party, as certainly could have been done here, or if the Attorney-General had given his fiat in these cases, he does not come to court and start talking about jurisdictional facts, I do not think.
MR BESANKO: No.
GUMMOW J: There are many cases in which injunctions have been given to restrain an illegal activity.
MR BESANKO: Yes.
KIRBY J: I want to know whether you embrace Justice Gaudron's point, whether that is a matter we have to consider on this case. It may be that if it is judicial review and you are looking in the traditional way, you go to jurisdictional fact but if you are going down the other line and it is an application to a judge for an equity relief that the judge just must determine the matter on his or her own resolution of the factual evidence that is placed before him or her without any reference to all this learning on jurisdictional facts. Now, do you adopt that or not? It is not what you have put in your written argument.
MR BESANKO: No.
KIRBY J: I just want to know whether I have to deal with it.
MR BESANKO: No, your Honour. Our submission would be that for relevant purposes there is no distinction although, as his Honour Justice Debelle said, one might more readily hear evidence of facts on a declaration or an injunction but we would not take it any further than that. That is the distinction between the two sets of remedies.
GUMMOW J: You may not take it any further.
MR BESANKO: Yes.
GUMMOW J: I am going to find it hard to write a judgment without grappling with it.
MR BESANKO: Yes, your Honour.
GUMMOW J: It strikes me as nonsense.
KIRBY J: I think you have walked across Westminster Hall. I think you have sort of brought the baggage of jurisdictional facts from the common law into the Court of Equity which may not be so constrained. I mean, there must be writing on this. There must be writing because the development of the declaration is one of the great developments of the law this century and the development of administrative law is another of them so there must be writing on how one resolves this problem. We would not be the first Court and certainly not the first minds to come upon this issue.
MR BESANKO: Certainly there would be authority, your Honour, that suggests that there is no limit on the power to grant a declaration other than discretionary considerations and that one could grant a declaration to restrain a breach of the law.
GAUDRON J: It depends, does it not, at least in this case, on what is the effective decision where there has been error in approach or error in procedures or perhaps jurisdictional error. In this event, you assert jurisdictional error. The question, ultimately, must be would people be acting with lawful authority if these errors or any one of these errors were detected? The answer might differ depending on the nature of the error concerned. That seems to me to be an issue that has not had to be coped with within the prerogative relief area but, ultimately, the question is probably what is the effect in law of the decision in question, which is a different question from that which usually arises in AD(JR)-type matters.
MR BESANKO: We put the proceedings, your Honour, on the basis that we were entitled to equitable relief to restrain a breach of the law. Was there a breach of the law? There was if the Development Assessment Commission had acted outside its power in deciding that this was a special industry, acted outside its jurisdiction - - -
GUMMOW J: Firstly, you have to get over Onus v Alcoa, do you not, which you do, because you say you have a sufficient interest.
MR BESANKO: Yes.
GUMMOW J: That does not seem to be challenged. I do not think in Onus v Alcoa the Court talks about jurisdictional facts much.
MR BESANKO: No, but what might be put against us is - - -
GUMMOW J: They ask the question if Alcoa digs up this site will it be contravening the relevant protection in Victoria by statute in respect of relics, do they not?
MR BESANKO: Yes.
HAYNE J: And the injunction you seek is an injunction restraining Collex from relying on the consent.
MR BESANKO: Yes.
HAYNE J: Not an injunction directed to the Development Assessment Commission. You must say, must you not, that the consent is, trying to use the term neutrally, ineffective, and your assertion of that is founded in the proposition that it was not granted in accordance with the statute.
MR BESANKO: Yes.
HAYNE J: At what point of that inquiry do you inject notions of jurisdictional fact? It is either granted in accordance with statute or it is not. It is either valid or it is not.
MR BESANKO: Yes. Your Honours, I think it was a case of Scurr v The Brisbane City Council where there had not been proper advertising of the proposal.
GUMMOW J: That is an injunction case, is it not?
MR BESANKO: That is an injunction case and the court granted the injunction, deciding that the requirement of the Act was mandatory and therefore, the advertising not having taken place, the consent was ineffective or null and void and there a clear breach of the law was shown. In this case, we say that there is a breach of the law because no concurrence was given.
GUMMOW J: Where is the actual prohibition which is lifted if you have the permission?
MR BESANKO: I think it is in section 35(3), your Honour.
GAUDRON J: That is the prohibition on the Commission. Where is the prohibition on Collex? Is that to be found in the planning instrument?
HAYNE J: Or is it 32:
no development may be undertaken unless.....an approved development.
GUMMOW J: That is it, is it not?
MR BESANKO: Yes. That is the prohibition on Collex.
GUMMOW J: That is right and you come along to Court and you say they are infringing section 32.
MR BESANKO: Yes.
HAYNE J: They have not got an approved development. They have not got an approved development because 35(3) was not met. QED. Good morning. Not much jurisdictional fact marching across the stage at that point, is there, Mr Besanko?
MR BESANKO: If your Honour pleases. Those are our submissions.
GLEESON CJ: Thank you, Mr Besanko. Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. May I deal with a number of matters first that have arisen in the course of our learned friend's submissions. First of all, in response to an observation your Honour Justice Gummow made about the earlier applications, there were some agreed facts which set those out. They commence at page 319 in volume 2. Your Honour, I will not go to them now but they set out, essentially, two things - first, what had taken place earlier; secondly, what was the material before the Development Assessment Commission and what stages took place in that consideration. That is the first thing, your Honours.
The second thing, your Honours, is the notion of - we do not suggest that the case was one of judicial review in any technical sense and I will come to what we say about the case in just a moment. May I say, your Honours, that one does see and one can understand why the Full Court was discussing judicial review because even in the notice of appeal from my learned friends to this Court one still sees judicial review adverted to.
May I take your Honours to page 429 in volume 2 where in ground 2 your Honours will see in the first line "application for judicial review" referred to and then ground 3 on the next page seems to be a subset of ground 2. When one comes to ground 4 at the bottom of page 431 it is again speaking of "judicial review". Ground 5 page 432 again speaking of "judicial review".
KIRBY J: Is this just being put forward for forensic purposes, given that you do not assert that it is judicial review.
MR JACKSON: No, no, I do not, your Honour, but observations were made about why did the Full Court deal with this at all and one can see the way the reasons may have arisen. Your Honour, so far as the structure of the proceedings is concerned the true nature is, as in our submission, obvious enough. They are proceedings for a declaration and an injunction and, no doubt, all other things being satisfied, the appropriate relief was of that kind, all other things satisfied in favour of the appellant, of course.
KIRBY J: Does that mean that there is no legal or procedural inhibition on the grant of an injunction or declaratory relief although the plaintiff could have mounted the case as a judicial review case and it would then have been dealt with differently, perhaps on a different record and by different principles?
MR JACKSON: Your Honour, it is purely a case about whether there was or was not power to do a particular thing. That puts it in one way and I will come to seek to demonstrate - - -
GUMMOW J: Traditional judicial review might not have achieved a result against your client. It was your client that, by a court order, could not do what it was wanting to do.
MR JACKSON: That is common law judicial review?
GUMMOW J: Yes.
MR JACKSON: Yes. It may have needed another party, for example.
GUMMOW J: Yes.
KIRBY J: But in South Australia there seems to be a hybrid. You can get judicial review plus declaration or injunction.
MR JACKSON: That is the case in all the jurisdictions that have legislation more or less along the lines of the Commonwealth Administrative Decisions (Judicial Review) Act and, in particular, of course, is the observation by the Court in, I think, Park Oh Ho v The Minister for Immigration saying that the courts dealing with applications of that kind should endeavour to dispose of the matter as much as they can. I have forgotten the actual number of the provision but it is the last provision of the remedy conferring provisions in that Act.
Your Honours, could I then go on to say that in response to something that was said by your Honour the Chief Justice in the course of my learned friend's argument, it is right to say that there was not, in the end, much difference between the findings as to fact made by the primary judge in the case and also the findings or conclusions that were before the Development Assessment Commission as to the frequency of the omissions that might occur from the plant if the development was permitted. One does see that there would need to go back, if our learned friends are successful, to the Full Court the issue of the correctness of the primary judge's decision on the issue.
What we would seek to say, however, is that if - and I will come to deal with this in a moment - the correct conclusion is that the judge should have based himself upon the material that was before the Development Assessment Commission then there appears to have been a decision in our favour upon that, a decision having the effect that the judge's view as to the operation and meaning of the definition of "special industry" was not the better view. Your Honours, that appears if one goes to page 423 in the passage commencing about line 15 and going through to page 424 and, in particular, where Justice Bleby, on page 424 lines 14 to 15 says:
I cannot see that the determination of the DAC, on the information before it, constituted a departure from the requirements of the definition.
He goes on then to deal with other circumstances and then says, at line 31:
It also follows from what I have said that it was not appropriate for this court to express its view as to whether, on the facts before it -
et cetera. The point I am seeking to make about it, your Honours, is that there is, if one looks at the passage to which I have referred, a decision in our favour in relation to the substance of the case, depending upon the extent of the material that could be looked at by the court.
Now, your Honours, could I move then to the substance of the matter as it were. It is possible, of course, to give various labels such as jurisdictional fact, power and so on to various aspects of administrative law but in cases like this, the starting point of our submission is necessarily the legislative provisions creating the powers in question.
Our learned friend's argument fastens, of course, upon essentially two passages in the legislation. Essentially, I suppose I should say, upon one, but also in passing upon another. The one upon which it fastens, essentially, is section 35(3) of the Act and that is the provision that says that:
A development that is of a kind described as a non-complying development under the relevant Development Plan must not be granted a provisional development plan consent unless -
then there has to be the assent of two other persons as well as the "Development Assessment Commission".
The second provision is, of course, regulation 16. Now, to put the matter in that way, however, does rather conceal some underlying questions and, in particular, if one turns to section 35(3), the question which arises is in the context of the Act when it speaks of a "development that is of a kind described as a non-complying development under the relevant Development Plan", is it speaking of such a development as classified by the relevant authority. We will be submitting that that is so. The second question which arises is, is the Court in examining the question raised by compliance with section 35(3) restricted to the material that was before the decision-maker
Those are the two matters which essentially, in our submission, arise. May I say, your Honours, that the Act itself contains a number of provisions which, in our submission, are germane to the resolution of those issues. The first, of course, is section 32 and may I take your Honours to that. What your Honours will see is that it provides that:
no development may be undertaken unless the development is an approved development.
And that, of course, is the proscription. But it will be an approved development if, and only if, the relevant authority has performed the assessment which is contemplated by section 33(1). Now, your Honours will see from section 33(1) that it provides that:
A development is an approved development -
and then to use the words again:
if, and only if, a relevant authority has assessed the development against, and granted a consent in respect of, each of the following matters - - -
GUMMOW J: So, Mr Jackson, before you leave 32, how does this present proceeding fit in with section 85?
MR JACKSON: Well, proceedings of this kind could be brought pursuant to section 85. There does not appear to be any ouster of the Supreme Court's jurisdiction.
GUMMOW J: Yes, the Court there is not the Supreme Court, is it?
MR JACKSON: No, it is defined in the definition sections to the Environment, Resources and Development Court. In relation to section 33(1) if your Honours look at the terms of section 33(1) that what is required by it is that there be an assessment by the relevant authority against - and then there is a large number of matters listed. I will not go through them, of course, but what your Honours will see is that in relation to those assessments one sees, for example, section 33(2):
An application may be made for all or any of the consents required -
Then there can be in subsection (3) a reservation of decision on a specific "matter until further assessment" and then subsection (4) where development is taken to be an approved development, which, of course, takes one back to section 32 of the usage there. When all relevant consents have been granted and the relevant authority has indicated that the development is approved - - -
HAYNE J: I am sorry, what provision are you now reading, Mr Jackson?
MR JACKSON: I am sorry, your Honour, 33(4)
HAYNE J: Because the print I am looking at stops at 33(3)
MR JACKSON: I am sorry, your Honour, it may not have been in force.
GUMMOW J: We have got a print in force of 23 November 1995.
MR JACKSON: I am sorry, your Honour. In that case I will forget what I just said. Would your Honours forget what I said lastly. Could I then take your Honours to the fact that the Act contemplates that applications for developmental consents will be made and that appears from a number of provisions of the Act itself. Could I take your Honours first to section 39 and your Honours will see from the terms of section 39(1) that the application has to be accompanied by various documents, and so on. Your Honours will see also from the terms of section 33(2) that an application is contemplated and the opening words of section 37(1) also do so. If your Honours go to the various provisions of section 39 your Honours will see that under subsection (2) there can be requests to provide additional information and so on.
Your Honours will see that the authority has the power under subsection (4) to permit variations of these matters, and, subsection (5) there is power to:
grant a permission under subsection (4) unconditionally or subject to such conditions -
and so on. Now, the provisions to which I have referred indicate, of course, that the application is to be accompanied by various material, "plans, drawings" and so on, and the decision made by the authority is one which section 42 says may be expressed to be subject to such conditions as the "relevant authority thinks fit to impose".
Section 32 is not the only provision which contains a relevant proscription because if one goes to the terms of section 44 what your Honours will see in 44(1) that:
A person must not undertake development contrary to this Division.
Then subsection (3):
A person who has the benefit of a development must ensure that the development is used, maintained and operated in accordance with -
amongst other things:
(b) any plans, drawings, specifications or other documents submitted to a relevant authority for the purposes of this Division that are relevant to any such approval.
Then subsection (4), the requirement to comply with conditions and a provision similar to subsection (3) in relation to building work, specifically, in section 45(1).
Now, the existence of the provisions to which I have just referred, particularly section 44(3), is an indication, in our submission, that the ultimately relevant material is that which is before the relevant authority because - - -
KIRBY J: That is for the making of a lawful determination, but if a court holds that it is not lawful the court is not then providing the consent of the authority, it is simply saying, "Your first consent was wrong and it has got to go back to be reconsidered by you".
MR JACKSON: Yes, your Honour. I am not suggesting that the relevant authority can determine an issue conclusively. What I am seeking to say is that the material to be considered in determining whether the authority has decided the matter properly, if I could use that neutral term for the moment, is, in our submission, ultimately the material which was before the authority. Now, the question arises, of course, about whether - assuming that if one makes the assumption in our favour that that is the base material to be looked at - whether the function of the court is then to decide itself upon that material or whether to determine whether there has been in error in the approach taken by the authority, but that is something to which I will come in just a moment.
Could I also say that one then sees the regulation-making power in section 108. Could I refers your Honours to subsection (1) and subsection (2), in the first place. Subsection (2) takes one to the schedule which should be on a page or two following.
KIRBY J: Which section is the regulation?
MR JACKSON: Section 108(1) and (2), your Honour. The schedule lists, amongst other things, first of all, item 2, the subject matter for regulations being:
The procedures to be followed in relation to an application for any form of development authorisation under this Act -
Then, item 15:
The classification of various forms of development for the purposes of this Act.
Now, one then sees that in addition to those being the subject matter of regulations there is the power in section 108(6)(d) to make regulations which:
provide that any matter or thing is to be determined, dispensed with, regulated or prohibited according to the discretion of -
amongst other persons -
the Development Assessment Commission -
Now, if one goes then to the regulations - and if I could take your Honours there for just one moment - your Honours will see that regulation 15 deals with the course to be taken in dealing with applications and then one comes to regulation 16(1). It requires the relevant authority, amongst other matters, to determine the nature of the development and that can really only be for the purpose of determining into what particular category - probably I should not use - - -
GAUDRON J: It does not say it may mis-determine it, does it?
MR JACKSON: No, your Honour, it requires to determine it and to proceed to deal with the application according to that determination. Now, what we would seek to say is that the earlier words of regulation 16(1), that is:
If an application will require a relevant authority to assess a proposed development against the provisions of a Development Plan -
Those are a reference back to the requirements of section 33(1) of the Act, because that is the words that are there used. Now, what is contemplated by regulation 16(1) is the formation by the relevant authority of a view but on the material supplied to it. Could I just say in response to your Honour Justice Gaudron that it would be pretty rare to find provisions that said in terms that an authority can mis-determine something. That tends to be covered, of course, if one sees it at all, by a privative clause.
GUMMOW J: Yes, there is no Hickman clause here.
MR JACKSON: No, your Honour, I do not suggest there is.
HAYNE J: But nor does it say that the relevant authority must determine what in its opinion is the nature of the development, as might perhaps be contemplated by section 108?
MR JACKSON: Could I just say, your Honour, to things in relation to that? The first is that if one reads 16(1) and 16(2) together, and your Honour will appreciate that 16(2) does contain the expression "opinion" in it and - - -
HAYNE J: Yes.
KIRBY J: That is only for the trigger, for the obligations that then arise, to be noticed.
MR JACKSON: What 16(2) is referring to is one of the results of the process in 16(1) and - - -
KIRBY J: But it is not conferring and could not confer an additional power of unreviewable opinion on the authority, it is simply saying, "If it does reach that opinion it has to give a notice.
MR JACKSON: Your Honour, we do not suggest it is unreviewable, and, with respect, that is, if I may say so, with respect, really to add gross to negligence. We do not suggest that it is unreviewable but it is a question of what are the circumstances of the review. May I just say, first of all, that - I think I was answering your Honour Justice Hayne, that the use of the expression "opinion" in section 16(2), which really is a reflection of the process in 16(1), does indicate that what is contemplated by 16(1) is a question of opinion. The second thing we would seek to say about it - - -
GAUDRON J: Well, that depends whether regulation 16(1) and regulation 16(2) are directed to the same purpose. I would have read regulation 16(2) as directed to the purpose of allowing the applicant to convince them that they are wrong in their view that it is a non-complying use.
HAYNE J: And, equally importantly, to intercept the time provisions later mentioned, so that time does not run until they have put in their statement in response.
MR JACKSON: Well, could I just say these things about that - still dealing with regulation 16. The first is this that no doubt the - all I am trying to develop from regulation 16(2) is to say that - and this is in response to your Honour Justice Hayne - if one is looking at what is contemplated by 16(1), what we would seek to say is that it does involve the formation of an opinion, the formation of an assessment or a view and that that is so is reflected by the manner in which regulation 16(2) is contemplated when 16(2) is expressed when it speaks of one of the possible results of the examination - to use a neutral term - in regulation 16(1). The consequences that flow from that one sees in regulation 17 and that goes through a number of possible consequences. But, the second thing I would seek to say, your Honour, is this, that the words used in regulation 16(1), when it speaks of the assessment of a proposed development, are ones which reflect section 33(1) and what is contemplated by that assessment is, in our submission, inevitably, the formation of the view which is contemplated by what really is the core provision, section 33. It:
is an approved development if, and only if, a relevant authority has assessed -
it, et cetera. Your Honours see the words assessment of the:
proposed development against the provisions of a Development Plan -
in regulation 16(1).
HAYNE J: On that construction of the Act which would seek, as I understand it, to give primacy to 33(1), namely, assessment plus grant of consent being afforded what I have described as primacy, how do you related 35(3) to the consequences contemplated by 33(1)?
MR JACKSON: The position which obtains, in our submission, is that when section 35(3) is speaking of:
A development that is of a kind described as a non-complying development -
what one is looking to see is whether it "is of a kind described as a non-complying development" because of the decision of the relevant authority, pursuant to regulation 16. What I was going to say about it was this, that if it is of that kind then that imposes an inability on the authority itself to grant the permission - other people have to agree.
HAYNE J: Do I accurately summarise this branch of the argument as saying that on the true construction of the various provisions you have just taken us through, the critical fact is that the relevant authority has formed its opinion on the basis of what it had before it?
MR JACKSON: Yes.
HAYNE J: Leave aside mala fides and other extreme cases, of course, but formation of opinion on that material concludes the issue of whether 35(3) applies or has relevant operation?
MR JACKSON: It concludes it, your Honour, subject to a number of matters which I will seek to indicate in just a moment, and that is the matter with which I would seek now to deal. The expression, in a sense, jurisdictional fact that has been used, is one which I suppose, in a sense, can be used to describe various circumstances but generally speaking - I am sorry, may I start again. If one is looking at the current situation one can readily enough apply the test of saying one looks at the material before the court. For example, considering the injunction, one looks at the material before the court considering the injunction in order to determine whether some objective fact is or is not established.
If the fact is objective in the sense that the decision-maker has no power unless that fact exists, then the question of whether the circumstance in fact exists no doubt is something to be determined by the court because, ordinarily speaking, the person making the decision, or the - I am sorry, that is perhaps the wrong way of putting it - the power cannot be exercised if the condition precedent is not satisfied. Your Honours, that is something, of course, that one sees commonly in relation to Commonwealth constitutional cases because the Parliaments - one of the enumerated powers - you cannot make something the lighthouse by declaring it to be so.
But, very frequently in non-constitutional contexts, the power to do something will be dependent upon the making of judgments or the formation of opinions.
GAUDRON J: But it hardly seems likely that that would be so in a context in which what is being required, in effect, is three consents. It hardly seems likely that you would construe it so that one person can bypass the other two, by the formation of an opinion.
MR JACKSON: It is not really someone bypassing anyone, your Honour. What you do - - -
GAUDRON J: Let us assume, for example, a clear case of non-complying use. It is a residential area which - this is the hypothesis - in which there can only be built residences for domestic occupation. Somebody comes along with a proposal, a development plan to build an abattoir. Can whoever it is decide, "In my view that is a complying development", clearly wrongly.
MR JACKSON: I do not suggest they could, your Honour. What I was going to say was this that if the condition of the existence of the power is not an objective fact but the formation of the opinion or an assessment, that does not mean that - - -
GAUDRON J: What is the opinion we are looking at? What is posited by section 35 is a development of a kind described as a complying or as a non-complying development. Now, it would seem to me that does not really involve a formation of an opinion. If the opinion is to be formed, it is earlier down the chain, as it were, as to whether or not it is a special industry, is that not so?
MR JACKSON: Well, you Honour, I do not know about "earlier down the chain" really, but what one sees is that it is for the relevant authority to determine the nature of the development and that is because the regulation says so, the regulation-making powers in the Act and it is wide enough to - - -
GAUDRON J: Yes, but the regulation power is not going to cut across - or the regulations cannot cut across express and mandatory statutory provisions. The question is, can you really construe section 35 by reference to the regulations and I would have thought not.
MR JACKSON: Your Honour, I would accept immediately, of course, that one looks at the first tier before going to the second, but in doing that, one does have to bear in mind that what the Act contemplates by the regulation-making power is that some matters will or may be left to determination by the relevant authorities contemplated by the Act and if one goes to regulation 16, what it is saying is that it is to determine the nature of the development. Now, that determination is as open to examination by a court as any formation of opinion is in administrative law, generally.
KIRBY J: But your point is that what the Court is looking at is not what it thinks, subsequently, on different material, but what was within the power of your client to decide at the time it made the decision which is under attack.
MR JACKSON: The first respondent, yes, your Honour.
KIRBY J: The first respondent. And, in fact, when one looks at the summons for relief it claims relief on the basis that it was ultra vires. Now, this does not mean ultra vires at some later time on different evidence but, by inference, ultra vires on the material that was before the decision-maker at the time the decision was made.
MR JACKSON: Well, that is what it should have been, in our submission. That was obviously, by the way in which the case was conducted, not what was intended and no doubt ultra vires is - - -
KIRBY J: But would that not mean that once evidence was tendered that the objection should have been taken?
MR JACKSON: It was.
KIRBY J: It was.
MR JACKSON: Yes. So, your Honour, this is a case where there has been, throughout, an issue on the admissibility of - as well as everything else - on the admissibility based on ultimate relevance of material other than the material that was before the - - -
GAUDRON J: You have to make good that ultra vires depends on evidence as distinct from the facts and the law, the combined operation of the fact and the law.
MR JACKSON: I am not quite sure what your Honour means by I "have to make it good".
GAUDRON J: One can imagine in this situation, for example - one would not countenance this, but one can imagine it - some officer of the approving authority says, "Oh, look, don't disclose that at this stage. It is not necessary to disclose that". A decision is made that it is complying. It cannot simply be that ultra vires depends on the evidence available to the decision-making authority, can it?
MR JACKSON: One can inquire - the court can inquire on a number of a things: first, was any relevant assessment made; the second is, were statutory procedures followed; the third is, whether there was material upon which the view could be formed, again, whether the decision was so unreasonable, et cetera, that no reasonable body could have formed it on that material, again, the question of bona fides. That may well fall within or encompass what your Honour was just putting to me but - - -
GAUDRON J: Some person, employee, acting without authority and the information is not available.
MR JACKSON: Well, it may be. It may be, perhaps, one can say, "Well, if that appears, the statutory procedures were not followed because - - -
GAUDRON J: Why not?
MR JACKSON: Well, because they were interfered with or interrupted by the intervention of someone without authority or someone purporting to act on behalf of it and having apparent authority but not actual and that would be within the accepted ways of review of such a decision. I do not suggest they are unreviewable. In fact, what we are suggesting is that the decision is one that is subject to the ordinary avenues of consideration in administrative law, and no more, and no less.
GLEESON CJ: Is that a convenient time, Mr Jackson?
MR JACKSON: Yes, your Honour. I except to be about 25 minutes.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.47 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. Your Honours, may I conclude the subject with which I was dealing by adding a couple more things. Your Honours, we would submit that the various grounds upon which it is possible to attack a decision would be available in relation to a decision of the DAC, including, of course, some others I did not mention earlier, taking into account irrelevant matters or failing to take into account relevant matters, and so on.
Your Honours, what we would seek to suggest is that there is not any very good statutory reason disclosed why one would construe the provisions as requiring a court to consider the whole substantive issue afresh on perhaps quite different material, albeit as at the same time as the decision of the Commission, particularly in cases such as this where the issue is fundamentally one of a value judgment, something turning on questions, of course, of fact and degree, as both courts below adverted to.
GAUDRON J: Well the question that turns on that, as you say, is whether it was a special industry.
MR JACKSON: Yes.
GAUDRON J: Yes.
MR JACKSON: Yes, your Honour. Could I give your Honours the references to the fact and degree aspect of it, without taking your Honours to them: they are in volume 2, the primary judge, page 383 lines 30 to 35; and the Full Court at page 416 lines 40 to 45. Your Honours, the next matter with which I would wish to deal - and I will endeavour to do so quite briefly - I submitted earlier that if the appropriate test is to look at the position based on the material before the relevant authority then, in fact, there was a finding in our favour on that material by the Full Court. The issue is one which is dealt with by the Full Court in a passage which commences at page 421 in volume 2. Your Honours will there see that his Honour, between lines 10 and 15 on page 421, says that:
I have already referred, in summary form, to the material that was before the DAC on 12 September 1995 -
The part of his reasons to which he is referring appears at page 400 line 31 through to page 404 line 17.
Now, your Honours, as one can see from the discussion, if I can go back to page 421, there were two reports of two groups of consultants which were supplied to and were before the Commission at the time when it made its decision: one is referred to as the Rust PPK report; the other, the AGC Woodward-Clyde report. The former report, the Rust report had been obtained by the appellant; the latter by the DAC and the Environment Protection Authority jointly. That material was before the Commission on 12 September 1995. The irrelevant agenda item is in volume 2 at page 340 and the two reports can be seen, the Rust report in volume 2 pages 273 to 279 and the other report, the AGC Woodward-Clyde report, at pages 295 to 315. There were also two other reports from the Environment Protection Authority which are at pages 281 to 290 and 291 to 293.
KIRBY J: What do you derive from these reports?
MR JACKSON: Yes, your Honour, I am sorry, I should have said that before. What I was going to say was that our learned friends said one cannot see reasons for the decision that was taken by it but, your Honours, what I am seeking to say is that if one looks at the material, including the agenda item and the discussion that took place, one can see at the end a conclusion, but a conclusion based on considerable material that was before the Commission and also - - -
GAUDRON J: But that material does not really support the view. If the material is that to which you have referred at page 421, it does not really support that view. The AGC Woodward-Clyde report starts off:
"A strictly conservative approach -
et cetera -
that the proposed development as described should be in a special industry zone.
That is the second one. The first one was:
The report expressed the view that the plant was likely to give rise to physical conditions defining a special industry under certain circumstances, but that such circumstances "will probably not occur frequently or for more than a small fraction of each year".
Well, does that really support the opinion that you say was formed?
MR JACKSON: Yes, it does, your Honour. I went earlier to page 423, where the court dealt with the approach to be taken to the definition of "special industry" and, your Honours, that appears at lines -one really starts, I think -I think I said 424, I meant page 423 if I did - commencing at about line 16, the passage that goes over to page 424 about line 16, and your Honours will also see a discussion of the question at page 405 at about lines 20 through to page 406 about line 55.
HAYNE J: And where, in the definition of "special industry", does the frequency of occurrence intrude?
MR JACKSON: The definition is at page 404.
HAYNE J: Yes.
MR JACKSON: Your Honours will see that it:
means an industry where the processes carried on, the methods of manufacture adopted or the particular materials or goods used, produced or stored, are likely:
(a) to cause or create dust, fumes, vapours, smells or gases;
and thereby -
(c) to endanger, injure or detrimentally affect the life, health or property of any person.....; or
(d) to produce conditions which are, or may become, offensive or repugnant -
Now, your Honours, what we would seek to say about that is that if one looks at what seems to be the most likely one, that is (d):
and thereby -
(d) to produce conditions which are, or may become, offensive or repugnant to the occupiers or users of land -
Now, your Honours, that must involve a question of degree and what is really being said in the passages to which I have referred - - -
HAYNE J: Well degree of repugnance, but frequency of occurrence? My question arises from what is said at page 421 lines 24 to 27, where the report expresses the view that:
the plant was likely to give rise to physical conditions -
et cetera -
but such circumstances "will probably not occur frequently -
and it is that last part that seemed to me, at first blush, to have nothing whatever to do with the subject; it was inquiring about partial pregnancy.
MR JACKSON: Well, your Honour, could I just say at page 421 again, what is said is that it:
is difficult to form a judgment with available information as to whether these odours will be detected by and be offensive to the neighbours.
And that seems to be something directed to the use of the term, at least "occupiers" and perhaps also "users of land" in the locality. So that, your Honour, the question of frequency, in our submission, taking that for the moment, is germane to the question whether the view is to be formed whether the earlier matters in the definition would produce conditions which are or may become - - -
GAUDRON J: It only has to produce conditions that might become.
MR JACKSON: Your Honour, one appreciates that, but what is being said is that you might have - you may have an escape - may I perhaps start that again. An underlying question, of course, is the nature of the activity being carried on. What I mean by that is, and your Honours will see the reference to, for example, restaurants, and so on; as to the "may become" aspect of it. But, what we would seek to say about it, your Honours, is this, that certainly it is true that things are or may become offensive or repugnant in one sense, in the sense that if something goes wrong somewhere, then, no doubt, in most kinds of activity, if activity is not conducted properly - there could be rats in, all sorts of things can happen - but in determining whether something does or does not fall within that, one really is looking at the way in which it is operated and all that is being said is that there is a possibility that a few times a year, and it is no more than that, there may be some escape from it, which may or may not go across into other places.
GLEESON CJ: Was this an extension of an existing development?
MR JACKSON: Yes.
GLEESON CJ: And what was the nature of the existing development?
MR JACKSON: The same thing, your Honour, except not covering the same range of substances.
GAUDRON J: Yes, you have got additional waste products now coming onto the site.
MR JACKSON: Yes, your Honour.
GLEESON CJ: So what is there already is not a rose garden and presumably there is a question of judgment as to the extent to which what is proposed will add to what is already there, in terms of potential offence to people who live in the neighbourhood?
MR JACKSON: Yes, your Honour. Your Honour, the passage I do not think I referred your Honour to particularly, in relation to conditions which are offensive or repugnant, is, I think, at page 405 lines 45 to about 60.
KIRBY J: I just want to work out the relationship between a court, as a sort of protector of the rule of law, that authorities do not become completely insensitive to such questions and the legitimate role of the authority to be the primary decision maker that Parliament has assigned. I mean, you could conceive of an obvious case where the authority just is applying the wrong test and is impervious to smells, it is an authority with a diminution in that olfactory sensitivity, but how does one work out where the realm of the authority finishes and that of a court begins? This is the problem I have.
MR JACKSON: Your Honour, it must, of course, turn on particular statutory provisions, but speaking in more general terms, there is a recognised list of requirements, as it were, which, if not complied with, will vitiate such a decision. Now, your Honours, I do not know that I can list them all one by one, most of them are paraphrased in various Administrative Decisions (Judicial Review) provisions, and sometimes taken a little bit beyond, but one does have matters, on the one hand, dehors the activity, such as bad faith and things of that kind; one then has to examine what is the function which is conferred by the statute? The second is, are various procedures referred to in the statute complied with? One then comes on to questions such as have factors that are material not been taken into account or matters not material not been taken into account? One then has to look to see; if so, there has been some erroneous view of the law taken. But such a restriction as there is, your Honours, is a restriction in the end upon what sometimes is called the merits review.
KIRBY J: And, in so far as one gets to merits - - -
MR JACKSON: That is when Wednesbury comes in, your Honour.
KIRBY J: Yes. That is not the approach that this judge took.
MR JACKSON: The primary judge, your Honour?
KIRBY J: Yes.
MR JACKSON: No. We were saying he should; he did not.
KIRBY J: And is that because he took a view of his jurisdiction in the manner in which it had been invoked; that is to say, by application for declaration and injunction, as distinct from pure traditional judicial review?
MR JACKSON: Your Honour, I do not think it is right to say that is the reason for it. The judge appears to have taken the view that what he was concerned with was something that could be described as jurisdictional fact. Because the nature of it fell within that description, therefore the matter was to be decided upon the material which was before him, whatever might have been the material before the Commission as at the point of time with which he had to be concerned. That seems to be the reason, your Honour. Now, your Honour, the real question in a sense is to say, what is the nature of the pre-condition to the exercise of the power or to validity and was that or was that not satisfied, but that involves identifying what that is.
GUMMOW J: Mr Jackson, how did this definition of "special industry" find its way into the case? It is a definition in the regulations, not in the Act.
MR JACKSON: Yes, your Honour.
GUMMOW J: What provision in the regulations, as it were, picks up the definition?
MR JACKSON: Your Honour, paragraph 6 in our written submissions, I think, endeavours to set that out.
GUMMOW J: Is this because the expression is used in the Development Plan and the Development Plan picks up terms used in the regulations?
MR JACKSON: Yes.
GUMMOW J: Do we have the text of the Development Plan?
MR JACKSON: It is here, I think, your Honour. Page 331,your Honour, and at page 331 you will see a heading at the top "General Industry Zone" and then paragraph 6 on the same page, under the "Principles of Development Control":
The following kinds of development are prohibited in the General Industry Zone:
That goes on the next page in the right column at the top it says "special industry".
Now, could I pause to say, your Honour, in the transitional provisions, which brought in the 1993 Act, references to "prohibited" became references to "non-complying".
GAUDRON J: Sorry, I was a bit slow, Mr Jackson; where does "special industry" find itself?
MR JACKSON: Your Honour, it is on page 332 at the top of the page in the right column halfway between "skating rink" and "squash court".
GAUDRON J: Yes. That is because we are in the general industry zone.
MR JACKSON: Yes.
GAUDRON J: And would not "liquid waste depot", which is at page 331, operate anyway?
MR JACKSON: Well, a good question for the Development Commission, your Honour, but I suppose one has to look up the definition of that term.
GUMMOW J: This comes out of the agreed facts, that is the problem in a way. The page you took us to at 331 is referred to at page 320, it was agreed fact 2.
MR JACKSON: Yes, your Honour; "liquid waste depot" is referred to at page 320. I do not know that there is any additional problem caused by that, so far as the case is concerned.
GAUDRON J: Well I ask it that way because no question of judgment and degree in liquid waste depot, is there; it is only really when you get to the definition of "special industry", is it not, that any question of judgment comes into play?
MR JACKSON: Your Honour may be right. The case has been conducted, I might say, on, for example, what one sees at page 361, between lines 55 and 60, where the primary judge said:
The only issue in this action is whether the proposed use is a special industry. It is, therefore unnecessary to examine the other definitions.
That is the way the case went; it seemed to be an issue generally that did not last beyond that statement.
Your Honours, I was going to say that I mentioned to your Honours that the term "prohibited" had been changed to "non-complying" and - - -
GLEESON CJ: Just perhaps before you proceed further, the parties might let us have a note, after we reserve our decision in this case, just to explain, because we may have to make an explanation in the judgment, how it came about that that was agreed to be the issue, bearing in mind the presence of the reference to "liquid waste".
MR JACKSON: Your Honours, could I put in that note the particular provision of the transitional provisions, which answers your Honour Justice Gummow's question. It is contained in Appendix I to the Act; there are many transitional provisions there, it is a little difficult to find in one moment.
Your Honours, could I just say one other thing, and that concerns the notice of appeal in the present case. As to the question of the finding to which I referred of the Court of Appeal, on the assumption, of course, that the right material to be looked at is that which was before the Commission, that does not seem to be the subject of any ground of appeal.
GUMMOW J: Sorry, could you say that again, Mr Jackson.
MR JACKSON: There is no ground of appeal - - -
GUMMOW J: No ground in this Court?
MR JACKSON: In this Court, which attacks the finding at page 424 lines 14 and 15. Your Honours, those are our submissions.
GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Besanko.
MR BESANKO: There are two matters in reply, if the Court pleases. In our submission, there is nothing in the definition of "light industry" which speaks of the frequency of occurrence. There may well be provision as to the likelihood of an occurrence, but nothing in the definition, in our submission, as to the frequency of occurrence.
The other matter, if the Court pleases, concerned the question of remedies, if I might just briefly return to that. We sought declaration and injunction and we do rely on the reasoning of Justice Debelle in the previous decision that his Honour made, about the scope of those remedies and whether or not judicial review has the same scope, in a sense, is not a matter before the Court on this application. We say, relying on the cases of Ludeke and Alley, that, for present purposes, there is no relevant difference between judicial review and the equitable relief because, in both cases, the calling of evidence is permitted and, if we are right about the essential question about the concurrence, then, taking either track, judicial review or the equitable remedies, would lead to the same result. If the Court pleases.
GUMMOW J: What do you say about Mr Jackson's last point, as to the absence of a ground of appeal, with reference to page 424 line 15 or thereabouts?
MR BESANKO: I think he is right, your Honour. I think that if this Court finds that the decision is to be made only by reference to the material before the Development Assessment Commission, then the Full Court, but not by reference to reasons but by reference to material before the DAC, does seem to have found that it was unlikely the occurrences referred to in the definition would occur, and we have not challenged that.
GAUDRON J: The problem here is not departure from the requirements of the definition; it is departure from the procedural or the consent requirements, if it is within the definition.
MR BESANKO: Yes, indeed.
GAUDRON J: And one would have though it is either within the definition or it is not within the definition.
KIRBY J: But your summons sought relief on the basis that the decision (when made) was ultra vires.
MR BESANKO: Well, your Honour, that might be a difficulty with the form of the summons, but the case was - - -
KIRBY J: That is what the court was addressing.
MR BESANKO: The case, your Honour, was conducted on the basis that it was for the court to determine, on the material before it, whether or not - - -
KIRBY J: But we were told that when you tendered the evidence it was objected to, and the contention was that this had to be determined on the basis of the material that was before the Commission.
MR BESANKO: Yes, your Honour, but the plaintiff was saying the matter was to be determined upon the evidence before the court.
KIRBY J: But that is not then determining, or, at least arguably not determining what was ultra vires the authority, as a decision-making body; it is determining what Justice Debelle, in the exercise of his jurisdiction, considered.
MR BESANKO: Your Honour, the declaration could have been more happily expressed. We would say that the case was conducted on the basis that the plaintiff was seeking a declaration and injunction that the Act had not been complied with, namely section 35 in the public notice requirements.
KIRBY J: And does not that inevitably take you back to investigating what the decision maker decided and the material on which the decision maker decided it?
MR BESANKO: No, in our respectful submission, your Honour, because one is entitled to look at the evidence and present it to the court, whether one calls it a jurisdictional fact or a pre-condition to the exercise of the granting of a consent.
KIRBY J: That may be right, but it is not then addressing the question of intra vires or ultra vires, because that presumably is determined on the basis of the material before the decision maker.
MR BESANKO: Your Honour, I think that the summons is deficient in that regard, but your Honour would see from the judgments in the courts below, that the case was clearly fought on the basis that no concurrence had been granted and it should have been granted and evidence was admissible before the court to determine whether the requirements of the section had been granted.
KIRBY J: You say the case was to run - that is the way you ran the case, but, as I understand it, the respondent was jumping up and down and saying, you cannot do that. That is the issue we have to decide.
MR BESANKO: That is the issue that your Honour has to determine or the Court has to determine, but, we submit, having regard to the way the case was run, any deficiency in the expression in the summons, your Honour, would not preclude us from relief. If they are right that it is only the material before the DAC, then so be it, but - - -
KIRBY J: But let us test that: what if there was an essential ingredient in your case which was not presented to the authority when it made its decision, which had been just overlooked, something absolutely central, does that mean that you can come along to a court later and just put the decision of the authority to one side and then prove that which has been forgotten or overlooked?
MR BESANKO: Yes, if, your Honour, (1), it is a pre-condition or a jurisdictional fact and (2), it is an objective matter, we submit, yes.
GLEESON CJ: Subject to any discretionary considerations that might touch on relief?
MR BESANKO: Indeed, delay, prejudice, and so on.
GLEESON CJ: Yes, thank you, Mr Besanko. We will reserve our decision in this matter.
AT 2.47 PM THE MATTER WAS ADJOURNED
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