Woollahra Municipal Council v Minister for Local Government & Ors [2017] HCATrans 108 (12 May 2017)

Last Updated: 12 May 2017

[2017] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S7 of 2017

B e t w e e n -

WOOLLAHRA MUNICIPAL COUNCIL

Applicant

and

MINISTER FOR LOCAL GOVERNMENT

First Respondent

DR ROBERT LANG, DELEGATE OF THE CHIEF EXECUTIVE OF THE OFFICE OF LOCAL GOVERNMENT

Second Respondent

CHIEF EXECUTIVE, OFFICE OF LOCAL GOVERNMENT

Third Respondent

LOCAL GOVERNMENT BOUNDARIES COMMISSION

Fourth Respondent

Application for special leave to appeal

GAGELER J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MAY 2017, AT 9.28 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MS T.L. PHILLIPS for the applicant. (instructed by Speed and Stracey Lawyers)

MR N.C. HUTLEY, SC: If your Honours please, I appear with my learned friend, MR J.J. HUTTON, for the first respondent. (instructed by the Crown Solicitor (NSW))

GAGELER J: Mr Walker, have you formulated this new ground of appeal?

MR WALKER: Yes. May I hand up what is described as a draft notice of appeal where, in ground 2, we have added, as your Honours will see, introduced by the words “in particular”, the way in which we would express the ground.

GAGELER J: Yes.

MR WALKER: As your Honours see we ring the changes of what we submit are the statutory requisites of “examination” and “inquiry”, the two statutory words in question, by reference to that which neither the Delegate nor the public had, namely, the material upon which the cogency of the KPMG contribution concerning financial consequences might be known.

GAGELER J: Yes, and the other grounds, the proposed grounds are - - -

MR WALKER: Now, as to the first, the point is well made against us - the word “secret” perhaps might have been better rendered “private” than “secret” but the point is the same. That has really come from a different direction at the failure to involve the public and permit the public thereby to participate in an inquiry in relation to what might be called the private briefings that KPMG gave.

As to ground 3, it has to be said that that is very much one that depends not only on the statutory interpretation issue, which may be regarded as perhaps having public importance but certainly depends upon a premise of what actually happened in this case; that is, it depends upon whether or not, as the Court of Appeal held against us, in any event the report did examine distributively – that is, severally as well as in aggregate – the financial consequences.

It relates in a general way to the statutory interpretation but really it is concerning what the examination requires, but is less centrally affected, obviously enough, by the reasoning to which we point in the Ku-ring-gai decision.

EDELMAN J: Mr Walker, ground 2 as formulated overlaps to some degree with ground 1 particularly in terms of the construction issues.

MR WALKER: No question about that.

GAGELER J: Thank you, Mr Walker. Mr Hutley, this really is an important point.

MR HUTLEY: Your Honour, I could say nothing about ground 2. We have already submitted in another five other appeals that were heard simultaneously by the Court of Appeal and then reserved, that Ku-ring-gai is inconsistent with Woollahra and Ku-ring-gai is clearly wrong. The same Bench that heard Ku-ring-gai reserved on those four appeals, so we accept that that is a matter of importance.

The only issue would be whether your Honours would entertain grounds 1 and 3. I accept that ground 1 - one has to construe the issue as to what is an inquiry and what is an examination. In point of fact we say the point is hopeless because it proves too much because, for example, one could not, if our learned friends are right, take submissions, as we did in this case, written submissions from hundreds of members of the public unless that took place in public, which is absurd. That is the ultimate issue.

GAGELER J: That is grounds 1 and 2, and that is what you will say about ground 1 on the appeal?

MR HUTLEY: That is the issue. As to ground 3, it really is just a visitation question. Our learned friends won on the question of construction and they merely say that the actual report did not live up to the construction as found by the Court of Appeal. It is a short point but it really is nothing

more on the appeal side. The Court of Appeal got it wrong in point of fact. I can say nothing more than that, your Honours.

GAGELER J: Yes, thank you. In this matter there will be a grant of special leave to appeal on all three counts.

AT 9.34 AM THE MATTER WAS CONCLUDED