Nashville Investments Pty Ltd v Gull Petroleum (WA) Pty Ltd & Ors P24/1999 [2000] HCATrans 342 (16 June 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P24 of 1999

B e t w e e n -

NASHVILLE INVESTMENTS PTY LTD

Applicant

and

GULL PETROLEUM (WA) PTY LTD

First Respondent

RAESIDE PTY LTD and K & W SALES AND DISTRIBUTION PTY LTD

Second Respondents

TOWN OF VICTORIA PARK

Third Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 JUNE 2000, AT 2.27 PM

Copyright in the High Court of Australia

______________________

MR M.J. McCUSKER, QC: May it please the Court, I appear with my learned friend, MR S.P. CRABB, for the applicant in this matter. (instructed by Clayton Utz)

MR W.S. MARTIN, QC: May it please the Court, I appear with my learned friend, MR A.G. CASTLEDINE, for the first and second respondents in this matter. (instructed by Minter Ellison)

MR J.C.W. SKINNER: May it please the Court, I appear for the third respondent in this matter. (instructed by Corrs Chambers Westgarth)

KIRBY J: Yes, thank you, Mr McCusker.

MR McCUSKER: Your Honours, this may at first blush seem a somewhat narrow issue and in a sense it is.

KIRBY J: That was a blushing thought that had occurred to me.

HAYNE J: And an issue, dare I say, Mr McCusker, that went away when the relevant town planning provision was amended or repealed.

MR McCUSKER: Thank you for raising it, your Honour.

KIRBY J: We will look forward to how you handle that one.

MR McCUSKER: In this way, your Honour, if I can come straight to it. The relevant town planning provision was amended so as to provide a definition of "convenience store" which did not appear in the scheme at the relevant time, but the definition of "convenience store" could be, in effect, side-stepped, in our submission, if the approach taken by the Full Court in this matter were upheld, because it would be a simple matter for any applicant who was in truth seeking approval for a convenience

store to, as I say, side-step any problems attached to applying for a convenience store - - -

KIRBY J: If it side-stepped it, why on earth would the High Court of Australia be examining an issue which can now so readily be side-stepped? I mean, I know you have to do battle for your client, and I have a little sympathy for your client in this case in the way things unfolded, but we have to look at it from the point of view of principle and it is hard enough to get up into this Court on a town planning matter of very particular, not even State-wide, significance, and then when you have the town planning instrument amended, it is very difficult to get into the Court. But you know the difficulties, so you have your say.

MR McCUSKER: Thank you, your Honour. So far as the amendment is concerned, the point I make is that, if the approach taken by the Full Court is correct, is upheld, in principle, then it is to no avail that the scheme text has been amended to define a "convenience store", because it would be a simple matter, on the Full Court's approach, for an applicant, who was in truth applying for a convenience store, to apply for a service station and conjointly with it a shop and so bring both of those uses within a use which did not require advertising. So that is the short point we make on that one.

So far as the general concern goes, the general application of this, there are other scheme texts which have similarly definitions of "convenience store" and so the same approach could be taken by an applicant, such as a service station owner, which sought to have, in truth, a convenience store, but applied instead for a shop and a service station, even though they were intermingled, because one thing that is of great concern here is that when the application was first made it was wrongly viewed by the council's planning officers and by the council in turn, who take, of course, their lead from the planning officers, as being an application for a service station, the relevant part we are talking about, and a separate application for a shop on a site which is part of the site, but quite separate from the service station.

Now within the service station proposal there appears, as your Honours may have seen from the judgment, a lot of other activities which were not truly part of service station activities, but shop activities. So the proposal was that the convenience - that there be, in reality, what is now commonly called a convenience store. The definitions of "shop" in the scheme text at the time - I think your Honours have been supplied with a copy of the scheme text, the relevant parts - at page 13 "service station" is defined and also "shop", which specifically does not include a service station. So the submission is, and indeed the trial judge accepted, that the definition of "service station" and "shop" were effectively mutually exclusive.

The council having approved the application on the basis that it was a service station, when the reality, we say, it was a service station and a shop intermingled to such an extent that it was a hybrid or different creature from either a service station or a shop, was not obliged to advertise or notify interested parties. When the issue was raised with the council, then the council took the step - and I will not bore you with the details, your Honours - ultimately of requiring a new application to be lodged by the - - -

KIRBY J: Yes, we know the facts.

MR McCUSKER: Yes. The result of that, of course, was that advertising occurred and there was such a number of objections to the proposal - - -

KIRBY J: That is why I made the comment at the outset. I can understand why your client is here, but it still has to get over a very big hurdle.

MR McCUSKER: Well, the point, we say, of importance is the way in which the court has approached the question of what is a shop and what is a service station and treated the intermingled or hybrid result as nevertheless a separate shop and a separate service station, notwithstanding , your Honours, that as appears from the application book at page 4, evidence was given by the expert architect called by the respondents themselves, and this appears towards the foot of that page 4, where he said that the shop and service station activities were:

about as integrated as they could be.....There's nothing further you can think of to make them more integrated?

So that the fundamental issue before the trial judge was whether the first application was for a shop and a service station or whether it was a service station, but in reality, an integrated operation which did not answer the description of either shop or service station.

The trial judge found, and his findings were only implied, but not expressly rejected by the Full Court, that the application was indeed for, what is called the service station area, which combined the integration with the shopping activities. The council's decision to approve it as a service station was therefore invalid and on no reasonable view of the definition of "service station" could this be considered to be a service station simpliciter, that therefore the initial decision of the council, which it later, in effect, reversed, to treat it as a service station application and approve it as such was invalid. It was based on a fundamental error, we say in our contentions, an error which goes to jurisdiction and therefore invalidates the approval.

Your Honours, the findings of the learned trial judge on this point are very clear and unequivocal and at page 18 of the appeal book about line 25, the trial judge said:

It was clear from Marcelino's evidence -

he was the planner -

that the sales area included within the service station section was assessed by him as part of the service station within the "AA" classification. The area shown as "shop" on the north eastern end of the proposal was classified separately as a "shop AA" use.

I should mention that there is a separate shop, divided from the hybrid..... which we say is really a convenient store. It is presently run as a chemist shop, it is quite different and run by a different operator. His Honour said:

That assessment, however, had nothing to do with the service station proposal.

Going on, at the top of page 13:

It is common ground that Marcelino assessed the proposals under the use class symbols.....as being "service station AA" and "shop AA" -

which, of course, gave the council power to approve the application without the requirement for advertising and calling for public submissions.

Justice Steytler, however, in his reasons in the Full Court at page 82 line 55, simply observed:

While there was no such evidence in this case -

that was to the ratio of customers who bought petrol and buying in the store -

it seems to me that the development application should appropriately be classified as one for distinct uses on the same site, being "shop" in the area marked as such on the plans and in the fast food sales area and "service station" in that part of the site to be used as such.

Now that is quite contrary to the decision, the findings made by Justice Scott, but the court does not explain how it came to that conclusion. It just said that that was how it seemed to the court at page 12 line - - -

KIRBY J: Well, a lot of these town planning cases, from my recollection of them, are cases of characterisation, classification, putting developments in particular boxes. Often the boxes are somewhat artificial, often they are vaguely worded. So is there anything more in that statement of Justice Steytler than that that is the box that he would put it in?

MR McCUSKER: Well, it goes beyond that, in our respectful submission.

KIRBY J: I mean, why would this Court review that? We have got enough characterisation to do with the Constitution without getting to this town planning scheme which has been amended.

MR McCUSKER: Your Honour, I appreciate the force in what you say, but could I just mention that this is not strictly speaking a town planning matter where, understandably, this Court has said that in the case of specialist tribunals such as town planning, the Court would be very reluctant to interfere. There is no specialist tribunal involved in this case. This is simply a case where the present applicant went directly to the court to seek a declaration as to the invalidity of the first approval. There was, indeed, an appeal which was lodged, but never proceeded with, by Gull, the respondent, to the town planning appeals tribunal against the decision of a council on the second application to reject the application. So that would have been a question of town planning - - -

KIRBY J: Yes, perhaps I used the expression loosely; I do understand how this matter comes to us.

MR McCUSKER: Yes. Your Honours, could I further mention, it is of considerable significance, of course, to the applicant, because although in one sense the issue is moot in that the proposed building has been built, there is an outstanding and, very threateningly, a very large claim in damages against the applicant - an exceedingly large claim, some hundreds of thousands of dollars, I understand, if not millions - which is going to be made, or threatened to be made, by the respondent, Gull, by reason of the injunction that was obtained to prevent the building from proceeding, based on the first approval. So, far from being a moot issue so far as the applicant is concerned, and the question of whether it be rendered moot by the amendment of the scheme, in our submission, is met by the answer that, where schemes have defined "convenience stores", which we say this truly was, if the decision of the Full Court in principle is correct, then the definition will be to no avail, because it can be simply side-stepped. So the important question for determination is whether it can be said in such a large scale integrated operation as this, nevertheless it could be fairly classified as being a service station and a shop and not some other creature, albeit as integrated as possible.

The issue which was raised before Justice Scott at trial, and which was raised also by way of notice of contention before the Full Court, concerns the question of the application of Craig v South Australia, the doctrine enunciated in that case. I must say, at once, that that issue was not directly addressed by Justice Scott, the trial judge, nor by the Full Court, on the hearing of the appeal. Justice Scott determined that the application was for a service station. It was not, in fact, in respect of a service station, but an unlisted use which should have been advertised and therefore the approval was invalid and did not direct his attention to the question of the operation of the principles enunciated in Craig nor, indeed, in effectively reversing the trial judge's view without explanation as to why it took a different view, the Full Court did not deal with the notice of contention which raised that point.

But the point still is there. It would be an issue for determination by this Court and raises some important questions in Halsbury's Laws of Australia at paragraphs 116 and following, there is what appears to be a view expressed by the learned authors, and presumably a view that is followed by at least a large number of members of the profession, that:

In Australia, the distinction between jurisdictional and non-jurisdictional errors of law holds true for courts, but not for tribunals and the executive.

The question of whether that is a valid statement of the law is an issue which, if special leave were granted, could well determine the outcome of the appeal itself.

HAYNE J: Well, under which of your proposed grounds of appeal would that issue be raised? I had not read your grounds of appeal as raising any question of Craig.

MR McCUSKER: At page - - -

KIRBY J: This is the point that the respondent makes at page 126, 3.7.

MR McCUSKER: Page 96 of the application book, paragraph 2.2, it is asserted - and this really follows from the notice of contention that I have mentioned:

The Full Court should have found that the Third Respondent made a jurisdictional error of law which invalidated the approval for the development application when it decided, in granting the approval, that the use classification "service station" under the Scheme covered and included the 200 m2 area designated "sales" on the relevant plans.

So we say it arises from that, but we do accept that the matter has not been considered by the Full Court nor by the trial judge because of the findings that they respectively made. It would nevertheless be - - -

KIRBY J: There are some aspects of Craig which, in my respectful opinion, will have to be considered by the Court at some time, but in a case where you have not raised the issue at trial, it seems to me a little difficult to suggest that this would be an appropriate vehicle and where it is not clearly raised in the grounds of appeal.

MR McCUSKER: With respect, your Honour, it was raised at trial, but no direct finding was made, at least by the trial judge, but the issue was certainly raised and argued at trial; the question of the effect of Craig's Case and the principle stated in it. Similarly, it was raised by the notice of contention and if I could take you to that, your Honours, it appears starting at page 51 of the application book - - -

KIRBY J: This is the notice of contention in the Full Court.

MR McCUSKER: Before the Full Court, yes. At page 52 - - -

KIRBY J: But is that not the problem, that if the matter can be dealt with by the primary judge and by the Full Court without, as it were, relying squarely on Craig, this hardly presents the suitable vehicle to bring the matter up for that purpose?

MR McCUSKER: It could only be dealt with, as indeed it was, by the Full Court, without relying upon Craig, because of what we say is a clear error of law - - -

KIRBY J: Yes, it is really a rebuttal point for you. If you get to the first base, Craig is a reason that could present a problem, but you say you can circumvent it, but if you do not get to first base you do not get to Craig.

MR McCUSKER: No, that is certainly the case, your Honour. Whilst looking at the notice of contention, could I just direct your Honours' attention to the findings that were made by the trial judge - they are set out there in paragraphs 1.1 through to 1.7. They are all findings of fact, which were not directly refuted or overturned by the Full Court, and it is clear, of course, that the definition of "service station" does not carry within it the operations of a shop selling fast foods intermingled with the sale, for example, of lubricants and so forth. It was, as I have said, as fully integrated as was possible in the view of the planner, Mr Adam, and to say, well, it is a simple matter to deal with this, as the Full Court said, by looking at what activities could be carried on on the site - and it is true that the "AA" use, without advertising could be approved for a shop and a service station - is not to answer the real question, what was this creature that was being approved and what was the application? In each case the trial judge's finding was the application was for the approval of an operation which was fully integrated, and he found that it was dealt with as such, although the Full Court, with respect, got that wrong by saying it was approved as two "AA" uses. It was dealt with as a service station and treated as such by the council when that was not so.

KIRBY J: I think your time is up, Mr McCusker. Mr Justice McHugh was much more generous to you this morning than I would be. I think we understand your points.

KIRBY J: Thank you very much. The Court does not need your assistance, Mr Martin or Mr Skinner.

Central to the applicant's contentions are propositions about the construction of a particular town planning instrument which has since been amended. Moreover, the subject development has been completed. The resolution of no question of general principle would be necessary to the determination of any appeal if leave were granted. Nor is it necessary in the interests of the administration of justice generally, or in this particular case, that leave be granted. Specifically, this is not, in the Court's opinion, a matter suitable as a vehicle for re-consideration of the questions raised in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 which the applicant has sought to argue. Accordingly, special leave is refused.

MR MARTIN: May it please your Honours, I move for an order that the applicant pay the first and second respondents costs of the application.

KIRBY J: Can you resist that, Mr McCusker?

MR McCUSKER: I think someone else is about to ask for costs, your Honour, but no, we cannot resist an application for costs.

MR SKINNER: Your Honours, as foreshadowed in the third respondent's summary of argument, the third respondent does not seek costs in relation to this application.

KIRBY J: Yes, I recall reading that. Thank you. Very well, the application for special leave is refused. The applicant must pay the costs of the first and second respondents.

Call the twelfth application.

AT 2.49 PM THE MATTER WAS CONCLUDED