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Capital Property Projects (ACT) Pty Limited v Australian Capital Territory... [2008] ACTCA 9 | Case summary | Zoe

ACTACTCA

Capital Property Projects (ACT) Pty Limited v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9

[2008] ACTCA 9

Court of Appeal (ACT)|2008-05-21|Before: Nicholson JJ

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Source facts

Court

Court of Appeal (ACT)

Decision date

2008-05-21

Before

Nicholson JJ

Source

Original judgment source is linked above.

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

HUMAN RIGHTS ACT

CAPITAL PROPERTY PROJECTS (ACT) PTY LIMITED v AUSTRALIAN CAPITAL TERRITORY PLANNING & LAND AUTHORITY

[2008] ACTCA 9 (21 May 2008)

APPEAL AND NEW TRIAL – leave to appeal from interlocutory judgment – order deciding separate question in proceedings – whether order about practice and procedure – discretion to grant leave – principles applicable – Human Rights Act 2004 (ACT) s 21.

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) Pt III ss 4 and 11

Administrative Appeals Tribunal Act 1989 (ACT)

Administrative Decisions (Judicial Review) Act 1989 (ACT)

Human Rights Act 2004 (ACT) ss 21 and 30

Land (Planning and Environment) Act 1991 (ACT) (Repealed) Div 2.2, ss 8, 113, 114 and 230

Legislation Act 2001 (ACT) Pt 1 s 139

Supreme Court Act 1933 (ACT) s 37

Court Procedures Rules 2006 (ACT) Div 5.4.2

European Convention for the Protection of Human Rights and Fundamental Freedoms

Opened for signature 4 November 1950

Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority [2007] ACTSC 95

Capital Property Projects (ACT) Pty Limited and Ors v Planning and Land Authority and Anor [2007] ACTSC 54

Holland v Jones (1917) 23 CLR 149

Estwick v Cooke (1729) 2 Ld Raym 1557; 92 ER 509

Brough v Perkins (1794) 6 Mod 81; 87 ER 837

Hall v Nominal Defendant (1966) 117 CLR 423

Licul v Corney (1976) 180 CLR 213

Carr v Finance Corporation of Australia Limited (1981) 147 CLR 246

Ratnam v Cumarasamy and Anor [1964] 3 All ER 933

Gallo v Dawson (1990) 93 ALR 479, 64 ALJR 458

Deighton v Telstra Corporation Ltd [1997] WAG 74 (Unreported, Lee, Heery and Nicholson JJ, 17 October 1997)

Sobey v Nicol [2007] FCA 921

Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424

Construction, Forestry, Mining and Energy Union and Ors v Clarke (2007) 156 FCR 291

Perry v Smith (1901) 27 VLR 66

Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401

The first respondent is established as a statutory corporation under s 7 of the Planning and Land Act 2002 (ACT) (repealed). Despite the common reference to it as “ACTPLA”, it seems that its corporate name under which it can sue or be sued is actually simply “Planning and Land Authority”. That Act, however, was repealed by the Planning and Development Act 2007 (ACT) which created by s 10 a body of the same name. I have not considered what, if any, effect this repeal has on the proceedings.
On 21 September 2006, the first respondent approved a development application by Direct Factory Outlets Canberra Pty Limited, the second respondent, under s 230 of the Land (Planning and Environment) Act 1991 (ACT) (repealed) (‘the Act’) in respect of a proposed development of retail premises on land at the corner of Newcastle Street and Canberra Avenue, Fyshwick in the Australian Capital Territory. It had also granted the second respondent a Crown Lease of that land in February 2006 following an auction in December 2005 at which the second respondent was the successful bidder.
These decisions were controversial. They were described by Connolly J as causing “a long standing and much publicised dispute within the Canberra community”: Capital Property Projects (ACT) Pty Limited and Ors v Planning and Land Authority and Anor [2007] ACTSC 54 at [3].
Possibly as a result of the dispute, the applicants, together with another party, Capital Property Finance Pty Limited, since dismissed from the proceedings, sought declarations, prerogative relief and statutory relief under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (‘AD(JR) Act’) by originating application commencing the proceedings below, against the present respondents seeking to have reviewed and set aside the decisions made by the first respondent referred to above.
An inkling of the dynamics of the dispute can perhaps be discerned from the description of the parties Connolly J gave in the above decision. His Honour found that the applicants were interrelated and that the third applicant was “a factory outlet enterprise situate on land owned by the second plaintiff [applicant] … situate … at the airport … [offering] to the public various retail services in a factory outlet/sale/discount type basis”: par [3]. The second respondent, on the other hand, “is associated with other companies around Australia which also offer factory outlet style retailing services”: par [4].
In the above decision, Connolly J dismissed the challenge to the granting of the Crown Lease on 22 June 2007 and, thereupon, Capital Property Finance Pty Limited effectively ceased to be a party to the proceedings.
On 18 April 2007, Gray J had, however, ordered three separate questions to be decided as a preliminary to the trial of the proceedings (see r 1521 of the Court Procedures Rules). As a result of the decision of Connolly J, only one of these questions remained to be decided and its form was agreed and it was considered on 30 July 2007. It was In relation to the allegations raised in pars 13, 15, 17, 19, 21, 23 and 27 of the originating application, or any of those allegations, are the parties entitled to adduce evidence in addition to that which was before the first defendant when it made its decision to approve (subject to conditions) the Development Application?
At the hearing, the applicants, as plaintiffs in the proceedings below, apparently abandoned any entitlement to adduce evidence in respect of pars 17, 21 and 27 of the originating application.
On 7 December 2007, his Honour answered the question as follows: In respect of the allegations raised in pars 13, 15, 19 and 23: No. In respect of the allegations raised in pars 17, 21 and 27: unnecessary to answer.
Mr N J Topfer, solicitor for the applicants was in court on that day to receive the judgment of his Honour. He deposed at [12] that he “considered the judgment [that day] and formed a preliminary view, in the absence of instructions from the applicants, that although in [his] opinion the judgment raised proper grounds for appeal, for reasons other than the prospects of success of any such appeal, the applicants were unlikely to appeal the judgment.” Mr Topfer did not descend into any particularity as to those other reasons.
Mr Topfer deposed that he then went on leave, returning on 14 December 2007, the seventh day after his Honour’s decision had been handed down. At around midday on that day, he received instructions “to appeal from Justice Gray’s judgment”, [13].
Mr Topfer explained that he reviewed the Court Procedures Rules on 18 December 2007. I take judicial notice that this is a week before Christmas, after the end of the legal term and a busy time for those practitioners who have not already departed on Christmas leave: Holland v Jones (1917) 23 CLR 149 at 153; Estwick v Cooke (1729) 2 Ld Raym 1557; 92 ER 509; Brough v Perkins (1794) 6 Mod 81; 87 ER 837; JD Heydon, Cross on Evidence, Australian edition, LexisNexis Butterworths; loose-leaf, Sydney, 1996 v 1, [3015].
Mr Topfer then “turned [his] mind to the proper procedures to appeal”, [14]. He clearly came to the view that the decision was an interlocutory one, which it clearly was: Hall v Nominal Defendant (1966) 117 CLR 423 at 439-40, 442-4, 447; Licul v Corney (1976) 180 CLR 213 at 219; Carr v Finance Corporation of Australia Limited (1981) 147 CLR 246 at 248, 253, 258. He then found s 37E(4) of the Supreme Court Act 1933 (ACT) (‘Supreme Court Act’), which requires leave to appeal from an interlocutory order of a single judge of the Supreme Court and Div 5.4.2 of the Court Procedures Rules which regulates the procedures for an application for such leave, including r 5312 which provides that the application must be filed not later than 7 days after the day the interlocutory order is given. He then acted with commendable speed, filing the application, affidavit and a draft notice of appeal as required by r 5311, the next day.
As Mr Topfer points out in his affidavit, though it seems more to be submission than evidence, the Court of Appeal may, under r 5312, allow further time within which to file the application. I note that under s 37J of the Supreme Court Act the grant of both the extension of time and the leave to appeal are decisions for which the Court of Appeal may be constituted by a single judge. I also note some judicial concern at the divorcing of the decision as to whether leave should be granted and the decision on the appeal itself: Niemann v Electronic Industries Ltd [1978] VR 431 at 436 (‘Niemann’). This has, however, become a common practice.
I have also been assisted by detailed written submissions prepared and filed by the applicant’s counsel and the helpful oral submissions by counsel for all parties. Extension of Time
The general legal background under which I must decide the application for an extension of time is not in great contention or doubt. Rules of court which prescribe time limits should ordinarily be observed: Ratnam v Cumarasamy and Anor [1964] 3 All ER 933 at 935. Nevertheless, the rules themselves provide for a discretion to extend the time limits in a proper case.
The purpose of such rules is to ensure that rules fixing time limits do not become instruments of injustice and to do justice between the parties: Gallo v Dawson (1990) 93 ALR 479 at 480, 64 ALJR 458 at 459. In that case, McHugh J identified that “… to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the … extension of time.” His Honour added that “… it is always necessary to consider the prospects of the applicant succeeding in the appeal”.
An alternative approach has been used in the Federal Court of Australia. For example, in Deighton v Telstra Corporation Ltd [1997] WAG 74 (unreported, Lee, Heery and Nicholson JJ, 17 October 1997), the Full Court of Federal Court considered that at least there must be “a satisfactory explanation for any delay in making the application” (perhaps included in what McHugh J described as “the conduct of the parties”) and “it would be necessary for the Court to assess the prospects of … leave [to appeal from the interlocutory decision] being obtained” at [4].
This decision has been relied upon in the Federal Court a number of times, most recently in Sobey v Nicol [2007] FCA 921. I do not see any significant difference between the two approaches; the approach of McHugh J perhaps requires a wider range of matters to be considered by the Court. It goes without saying that these other matters are all properly to be considered though in some – perhaps many – cases they may have little if any weight in the final decision.
In any event, the respondents to the application did not contend that time should not be extended within which to make the application for leave to appeal. While the Court clearly retains a discretion as to whether to grant an extension of time despite consent by all parties, it would only refuse to do so in the face of such consent in extraordinary circumstances. Accordingly I granted the extension. Leave to appeal from an interlocutory judgment
In this case the significant issue then is whether there ought to be a grant of leave from the interlocutory decision of Gray J. This would, in any event, have had to be first determined before the other issues referred to by McHugh J in Gallo v Dawson (supra) were considered, were decision on those to be required.
It has been said that a purpose of the requirement for leave to appeal from interlocutory decisions is the need to limit “… a string of appeals from interlocutory judgments of a single judge given in the course of a trial” which delay and interfere with the proper conduct of a trial and hamper the proper administration of justice: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 431. It may be that the court was there addressing a particular limited problem: Construction, Forestry, Mining and Energy Union and Ors v Clarke (2007) 156 FCR 291 at 293.
The rationale for the requirement for such leave was stated by Williams J in Perry v Smith (1901) 27 VLR 66 at 68: Parliament evidently desired to cut down these appeals from interlocutory orders as much as possible, and with that object have made this provision – that a person who is dissatisfied with an interlocutory order of this description, if leave is refused by the Judge who has made the order, shall only appeal provide he can obtain special leave from the Full Court: See Supreme Court Act 1900, s 2. We think that the object which Parliament had should be recognised by this Court in a liberal manner, and not begrudgingly. The cases cited to us seem to show that the onus lies on the party who applies for that leave to satisfy the Court of Appeal that the decision of the primary Judge was wrong, and in addition to that he has to satisfy the Court that substantial injustice will be done by leaving that erroneous decision unreversed. I note that s 2 of the Supreme Court Act 1900 (Vic) is to the same effect as to s 37E(2) of the Supreme Court Act.
This passage has been approved by the Full Court of the Supreme Court of Victoria in Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401 at 407 (‘Darrel Lea’) and Niemann at 437-8.
A different stream of authority is often cited which traces back to the comments of Jordan CJ in In re the Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318 where his Honour said at 323 … I am of opinion that … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal. But an appeal from an exercise of a so-called discretion which is determinative of legal rights stands in a somewhat different position. In this class of case, too, a Court of Appeal submits itself to self-imposed restraints, but restraints which, though strict, are somewhat less stringent than those adopted in matters of practice or procedure.
This was quoted with approval in Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Anor (1981) 148 CLR 170 at 177. There, the High Court referred, however, only to “decisions pertaining to practice and procedure” without limiting them to discretionary decisions, though most will be so.
It would appear, therefore, that the principles with which a Court approaches the decision as to whether to grant leave are: (a) that leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases; (b) that a Court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion; and (c) that decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave.
It may be that these principles should be applied more liberally in the light of s 21 of the Human Rights Act 2004 (ACT) which expresses the right to a fair trial since an error in the interlocutory decision may have the effect of derogating from the fairness of the trial. I address this further below.
The approach of the Court to the grant of leave is, however, no longer much in doubt, though it has evolved somewhat. In Darrel Lea the Full Court of the Supreme Court of Victoria adopted at 407-408 the formulation of Williams J in Perry v Smith (supra) quoted at [24] above, namely that “the onus lies on the party who applies for that leave to satisfy the Court of Appeal that the decision of the primary Judge was wrong, and in addition to that he has to satisfy the Court that substantial injustice will be done by leaving that erroneous decision unreversed.”
This was adopted by Murphy J (with whom McInerney J agreed and Gillard J, although dissenting in the result, also agreed as to the test) in Niemann who made an extensive analysis of the authorities. His Honour, however, moderated the formulation of the first limb of the test by adopting at 439 what was said by Lord Watson (though articulated in the reverse way) in the City of Montreal Case (La Cité de Montréal v Les Ecclésiastiques du Seminaire de St Sulpice de Montréal) (1889) 14 App Cas 660 at 662, namely “… the judgment from which leave to appeal is sought may appear to be plainly right, or at least unattended with sufficient doubt to justify their Lordships in advising Her Majesty to grant leave to appeal”. As McInerny J at 432, summarised some remarks of Murphy J in Niemann this modification was necessary to avoid “the inconvenience and possible prejudice or scandal which could arise if this court were to refuse or grant leave simply according to whether it thought … the primary judge was right or wrong”.
This approach has been followed in many cases. It was summarised, for example, in Sharp v Deputy Commissioner of Taxation (1988) 88 ATC 4184 at 4186 in the following terms: So far as the prospects of the proposed appeal are concerned, I take the test to be whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court. Niemann’s case is authority for this view. The second major consideration stated in that case is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
The decision has been followed by Full Courts in a number of jurisdictions: Heller Financial Services Ltd v Solczaniuk (1989) 99 FLR 304 at 317 (NT); Ex parte Stiles (1989) 2 WAR 270 at 275 (WA) and Orr v Rietmeyer (1998) 27 MVR 274 at 275 (Vic) (though the report of the latter case curiously ascribes it to the Supreme Court of Western Australia when it is clearly decided by the Court of Appeal of the Supreme Court of Victoria but see at p vi of the volume).
In 1991, the Full Court of the Federal Court of Australia had occasion to consider this issue in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Décor v Dart) and carefully review the approach that courts in Australia had taken to applications for leave and to the tests as laid down in Niemann. After extensive analysis, the Court opined unanimously at 399-400: In our opinion, the principles discussed in Niemann and in the other cases to which we have referred provide general guidance which a court should normally accept. However, there will continue to be cases raising special considerations, and the court should not regard its hands as tied in any case beyond this; that by s 24(1A) [of the Federal Court of Australia Act 1976 (Cth)] the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave. When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice – concerning which the High Court has given (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177) a strong warning that “a tight rein” should be kept on appeals – and an interlocutory decision determining a substantive right – where leave will more readily be granted. Although the judgments of Jordan CJ in Re Will of Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323 and of the majority of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (supra) are not concerned with the question of the granting of leave, they emphasise this distinction, which was applied to the granting of leave in Ex parte Bucknell (1936) 56 CLR 221 and Sharp, (supra). In the present case, the interlocutory decisions in respect of which leave is sought are certainly attended with difficulty, and their correctness is open to dispute. If they are wrong, significant consequences will be suffered by the applicants. We regard this as a clear case for the grant of leave.
That decision, therefore, adopts the tests in Niemann with some additions. It has been considered and applied in over 150 cases in the Federal Court of Australia. It has also been applied in the Queensland Court of Appeal: Pugin v Workcover Queensland [2005] 2 Qd R 37 at 40 and Thomas v Deputy Commissioner of Taxation (2005) 58 ATR 567 at 570. It has apparently been accepted in this Court: Nationwide News Pty Ltd v Bateman and Primary Health Care Limited [2003] ACTCA 6 at [48]. Similarly, in More than a Morsel Pty Limited v Dean [2003] ACTCA 9, this formulation was articulated at [4], though without specific reference to these decisions. This generally is the approach that should be adopted subject to what is said below.
There are some glosses on this approach. For example, the Full Court of the Federal Court of Australia considered in Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 86 FCR 399 at 403, 405; 410 and 416 that it was relevant in favour of a grant of leave that the issues involved “of public importance”. To the same effect was a comment, though in argument, by Crennan J in Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd [2007] HCA Trans 606 (5 October 2007). This has elements of the well-known test in the High Court considering special leave to appeal, that leave should be granted where the case “… raise[s] a matter of general importance”: Fredericks v May (1973) 47 ALJR 362 at 364. It has also been said that the fact that there are conflicting authorities on the point involved in the decision is a factor favouring a grant of leave: Bray v F Hoffman – La Roche Ltd and Ors (2003) 130 FCR 317 at 325, 349. See also RGC Mineral Sands Pty Ltd v Wimmera Industrial Minerals Pty Ltd (1988) 89 FCR 458 at 464.
Further, consideration needs to be given of the role that s 21 of the Human Rights Act 2004 (ACT) plays in this. This Act, of course, operates principally on statutory material: see definition of “Territory law” in the Dictionary to the Act. Appeals are, however, creatures of statute and their limit and extent are to be found in statute: Nevard v Harley (1980) 42 FLR 67 AT 69; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd and Anor (1976) 135 CLR 616 at 619, Niemann at 439.
It is clear that the right expressed in s 21 of the Human Rights Act 2004 (ACT) applies to civil proceedings and is not limited to criminal proceedings: SI bhnf CC v KS bhnf IS (2005) 195 FLR 151 at 164, König v Germany (1978) 2 EHRR 170 at [90]. Unlike the European Convention for the Protection of Human Rights and Fundamental Freedoms, however, the word “civil” is not used to modify “the rights and obligations” referred to in s 21. This means that the kinds of civil litigation to which the right applies is wider than in Europe where it applies only to dispute in private law and not public law: Ringeisen v Austria (1971) 1 EHRR 455 at [94]. This has to be borne in mind when considering European (including UK) jurisprudence on the subject.
In construing the provision for leave to appeal, then, an interpretation that is consistent with human rights as far as possible is to be preferred. This was required by s 30(1) of the Human Rights Act 2004 (ACT) as at the date of hearing of this application, though I note that since then it has been amended, on 17 March 2008, to strengthen the requirement for consistency with human rights. I do not need to consider whether the amendment applies to this application. On either provision, the construction of the legislation for leave to appeal to make it consistent with the right to a fair trial would, it seems to me, require that the reference to “substantial injustice” be modified. Something less than a substantial injustice may well result in an unfair trial.
Of course, matters such as delay in or fragmentation of a trial may also affect its fairness and these factors too must be taken into account. It is also clear that the trial has to be fair, not perfect. No trial is likely to pass a test for perfection. It must, however, be positively fair; that is to say, if there was a position where a trial was neither fair nor unfair (conceptually possible, but difficult to see how it could practically exist) that would not suffice, as the trial must be fair.
As no specific argument was addressed to this issue, I do not feel able to formulate a test, including what limits may be appropriate; for example, a minor injustice (if such is possible) may not render a trial unfair and some decisions the subject of challenge may not have any relevant effect on the fairness of the actual trial at all. The challenged decision
I have set out above ([8] to [10]) the bare details of his Honour’s decision which the applicants seek to challenge. More, however, needs to be explained to put it into a proper context.
I shall summarise the matter in a way that, I trust, does not become inaccurate through simplification.
The statutory context is that the planning arrangements in the Territory are regulated by two interlocking schemes, one of the Commonwealth and one of the Territory. These were at the relevant time primarily provided by the two principal Acts, the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) (‘the ACT Land Act (Cth)’) and the Land (Planning and Environment) Act 1991 (ACT) (‘the Act’). Each makes provision for a plan to be prepared, the former the National Capital Plan, the latter the Territory Plan. These Plans set out policies for land use, development and planning. It is by reference to these Plans that planning decisions, including the approval of developments such as at issue in the proceedings below, are made.
As noted above, the applicants seek to challenge the decisions that were made in relation to the development referred to in [3] above. The nature of the challenge that may be made is at the heart of these proceedings.
In the applicant’s claim, pars 13, 15, 19 and 23 allege in support of a claim for prerogative relief that (a) (paragraph 13) the development proposed by the second respondent and approved by the first respondent (“the Proposed Development”) is inconsistent with the Territory Plan (for which see, at the relevant time, the Act, esp Div 2.2); (b) (paragraph 15) the Proposed Development is inconsistent with ch 4 of the National Capital Plan (for which see ACT Land Act (Cth) Pt III); (c) (paragraph 23) the Proposed Development is inconsistent with land use control in s 3.1 of pt B3 of the Territory Plan; and (d) somewhat separately, paragraph 19 pleads that a preliminary assessment of the environmental impact of the Proposed Development had not been completed as required by the Act. It is then alleged that, as a consequence of these inconsistencies and the absence of an environmental assessment, the first respondent exceeded its jurisdiction by approving the proposed development.
Particulars were given of each allegation. It is not necessary to set them out in these reasons. At issue was whether the allegations made in the paragraphs referred to and particularised were jurisdictional facts in the sense that they were facts essential to the exercise of the decision-making process of the first respondent. Critical to this was the reliance of the applicants on s 8 of the Act which provides The Territory, the Executive, a Minister or a territory authority must not do any act, or approve the doing of any act, that is inconsistent with the [Territory] plan. Similarly the ACT Land Act (Cth) provides in s 11(2) The Commonwealth, a Commonwealth authority, the Territory or a Territory authority shall not do any act that is inconsistent with the Plan.
It does not appear to be in doubt that the first respondent is a territory authority: see Pt 1, Dictionary, Legislation Act 2001 (ACT) and s 4 of the ACT Land Act (Cth).
In relation to the allegation in par 19, the applicants rely on ss 113 and 114 of the Act which is also mandatory in form, providing:

The significance of the particulars is referred to in his Honour’s decision where, at [10], Gray J noted: The issue though, is whether the [applicants] can supplement the material that was before the first [respondent] to show that the decision was inconsistent with the Territory Plan. That can only be so if the determination of consistency or inconsistency is one that can be made on an objective basis as a precondition to the planning authority approving or not approving the particular development. In that way, it is said that the issue of consistency is with the Territory Plan. A similar issue arises in respect of the allegations made in par 19.
His Honour’s conclusion on the issues alleged in pars 13, 15 and 23 was at [44]: Whilst accepting that there are circumstances where matters of judgment, fact and degree may be involved in jurisdictional facts … I consider that the overall statutory context in this case demonstrates that the legislature did not intend that the issue of inconsistency to objectively exist but rather that it should be left to the judgement of the decision-maker in determining whether applications should or should not be approved under s 230 of the Land Act …
In relation to the issues alleged in par 19, his Honour considered himself bound by the decision of the Full Court of the Federal Court of Australia, then the appellate court from the Supreme Court of the ACT, in Canberra Tradesmen’s Union Club Inc and Anor v Commissioner for Land and Planning and Ors (1999) 86 FCR 266 (‘Canberra Tradesmen’s v Commissioner’). His Honour noted that, subsequently, doubt had been cast on the reasoning in that decision by at least one judge in a later decision of a differently constituted Full Court in Canberra Tradesmen’s Union Club Inc and Ors v Minister for Environment, Land and Planning and Anor (2000) 98 FCR 145 (‘Canberra Tradesmen’s v Minister’).
Of course, in considering the decision sought to be challenged, I am neither required nor, perhaps, permitted to come to a decision about the issue in question itself, although that may appear to occur in those rare circumstances where leave is granted because it is able to be said that the decision is wrong. While directed to a Full Court (which, of course, had power to hear and determine the very issue as well as the grant of leave), the words of Murphy J in Niemann at 441-42 are salutary: On an application for “leave” the Full Court ought not, in my opinion, to be required, before granting leave, to determine the issue in question, or to decide whether the primary judge’s discretion miscarried. That would be to duplicate the work of the Court. The requirement for leave is designed to reduce appeals from interlocutory orders as much as possible. If leave can only be granted, (sic) following an examination of the merits of the matter and a decision that the order made by the primary judge was “wrong”, and the matter goes then to be decided on the merits by another Full Court, the object of the legislature is negated, and absurdity is the result. Cf. Lane v Esdaile, [1891] A.C. 210, per Lord Halsbury L.C. at p 212. It therefore appears to me that in using the word “wrong” in Perry v Smith and in the Darrel Lea Case, the Full Court must have used it in a sense which included decisions “attended with sufficient doubt”, to use the Privy Council phrase, from which decisions substantial injustice flowed.
In addition, it must be said that the legislative intention in permitting an application for leave to appeal against an interlocutory decision to be made by a single judge (s 37J(1)(a) of the Supreme Court Act) who has no jurisdiction to decide the issue itself is a powerful indication in support of this caveat.
Further, it is appropriate, when dealing with the substantive arguments, that my reasons on the arguments themselves should be brief: ABB Power Transmission Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 261 (‘ABB v ACCC’). As noted in that case, some intermediate appellate courts as a general practice give no reasons at all for the grant or refusal of leave: Southern Cross Exploration NL v Fire and All Risks Insurance Company Ltd (1990) 21 NSWLR 200 at 215, 218. That is not a practice this Court follows. The applicant’s submissions
The applicants submitted that his Honour was in error in construing the inconsistency that is prohibited by both s 11 of the ACT Land Act (Cth) and s 8 of the Act as matters entirely within the jurisdiction of the first respondent and not challengeable as jurisdictional facts susceptible to review by the courts. This appears to be because, as his Honour said at [44], I consider that the overall statutory context in this case demonstrates that the legislature did not intend that the issue of inconsistency to objectively exist but rather that it should be left to the judgement of the decision-maker whether applications should or should not be approved…
The consequence of this, submits the applicants, is that the first respondent could approve a development which was objectively inconsistent with the Territory Plan or the National Capital Plan and there would be no review or challenge available to correct what would be prohibited by those two Acts.
The applicants further rely on the fact that the ACT Land Act (Cth), uses the word “inconsistent” in other provisions where it clearly means “objectively inconsistent” and, further, that his Honour’s approach would result in the, at least curious, situation where, absent express statutory sanction, a Territory created administrative body would be determining the reach and effect of a Commonwealth provision in a way that was binding and without review. The applicants point to a passage in his Honour’s reasoning at [13] which, I confess, I find hard to construe It seems to me that because the provisions of the Territory Plan require consistency with the National Capital Plan, the question of inconsistency as a jurisdictional fact to decisions of a Territory authority will depend upon a construction of the relevant Territory Act, not the Commonwealth Act. That construction of the Territory Act will take place against the background of the scheme set out in the Commonwealth Act but is otherwise not affected by the provisions in the Commonwealth Act.
The applicants submit that this would amount to permitting the Territory Plan to override or usurp the jurisdictional fact of inconsistency arising under the Commonwealth Act and this permits Commonwealth legislation, in effect, to be overridden or subsumed by ACT legislation. They contend this is an error.
The applicants also submit that his Honour, in analysing the concept of a jurisdictional fact, used only one of the two meanings elucidated by the High Court in Corporation of the City of Enfield v Development Assessment Commission and Anor (2000) 199 CLR 135 at 148. His Honour certainly quoted only the passage from the judgment which identified one meaning alone.
In relation to the point referred to in paragraph 19 of the applicant’s application, the applicants note that his Honour felt bound by the decision in Canberra Tradesman’s v Commissioner. The doubts expressed in the later case were just that and did not change the binding nature of the precedent, though, the applicants contend, they do argue strongly for an opportunity to have the decision reconsidered.
In argument, I put to the applicants that the position for which they argued would have the effect that all planning decisions would become provisional in a sense that might be quite destabilising since a development that was approved but was objectively inconsistent with a relevant plan would not be the result of a wrong decision within jurisdiction that after time could not be challenged or a challenge refused on discretionary grounds, but rather a decision that was beyond the jurisdiction of the first respondent (or other relevant agency) to make and, therefore, likely to be required to be set aside ex debito justitiae.
The applicants submitted in response that all planning decisions have a provisional nature about them and that the fact that the decision has such a fundamental character does not deprive the courts of an appropriate exercise of discretion to prevent injustice.
The applicants submitted that the errors in his Honour’s decision had the effect of depriving them of a claim that they wished to make, especially those in pars 14 and 16 of their application, namely that the first respondent exceeded its jurisdiction in approving the development. This claim, it argued, could only be made good by adducing evidence not presented to the first respondent. The consequence of his Honour’s decision would be that much of the evidence they would wish to lead, would be excluded since it was not before the first respondent when it made its decision and this may prevent them from making good their claim. They argued that this would be unjust. The first respondent’s submissions
Counsel for the first respondent provided detailed oral submissions and handed up what he described as “speaking notes … [which] provide a bit of an outline”. They were useful.
The first respondent, whose submissions were in fact made after those of the second respondent, addressed primarily the first limb of the test for leave to appeal I have identified, namely whether there was sufficient doubt to warrant a grant of leave to appeal, and, with a few additions, adopted the submissions of the second respondent on the second limb, namely whether refusal of leave would result in substantial injustice.
I do not think it does violence to the helpful submissions of Mr Walker, who appeared for the first respondent, to say that in general he submitted that the construction of the relevant legislative provisions in the way for which the applicants contended would have such fundamentally unsatisfactory consequences on the planning system in the ACT that his Honour’s decision was unlikely to be wrong and therefore attended with so little doubt that the Court would not be justified in granting leave.
This raises what has become a somewhat problematic question with respect to statutory construction in the Territory. It appears that it is no longer enough to presume that one can start by assuming that the legal meaning of a legislative provision “will correspond with the grammatical meaning of the provision” (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384). A court has now to comply with legislative directives, such as in s 139 of the Legislation Act 2001 (ACT) and s 30 of the Human Rights Act 2004 (ACT), which directives may require a construction that might not have arisen from the resolution of ambiguity: R v Lambert [2002] 2 AC 545.
The first respondent categorised the central issue as “whether the applicants could ‘supplement’ the material which was before the First [Respondent] to show that the decision was inconsistent with the Territory Plan”.
I pause to say that this seems somewhat at a limited view of the applicants’ case. The case seemed to me to be that there was a question of whether the first respondent had jurisdiction to do what it did and, if not, then its decision should be set aside. If that is a justiciable issue (and if the applicants have standing to agitate it, a question which I was informed was very much alive in the proceedings) then it follows that, subject to any rules about the admissibility of evidence (including whether it is admissible in the proceedings of the nature of these proceedings), evidence should be permitted to be adduced to make out the case.
The first respondent contended that the approach of the applicants, which would permit them and others seeking to review planning decisions of the first respondent on a like ground to adduce material before the Supreme Court that was not before the first respondent, would render the Supreme Court a merits reviewer. The Court did not do that now, as review came either through judicial review under the Administrative Appeals Tribunal Act 1989 (ACT) on a question of law following a review of the decision by that Tribunal or through review under the AD(JR) Act. Neither of these, of course, are merits review.
There was an express implication in this submission that the applicants’ construction would release “the floodgates” of challenge to the Supreme Court and the first respondent submitted that the legislature cannot have intended this, particularly as it had constructed a process of review that appeared to be careful to avoid merits review by the Supreme Court.
The first respondent further pointed to the fact that it was appropriate that it have the role contemplated by the decision of his Honour because the vast majority of land in the Territory is “Territory land”, subject to its planning regulation, rather than “National land” regulated by the National Capital Authority.
The first respondent also adopted the argument I put to the applicants that the applicant’s approach made planning decisions provisional, leading to uncertainty that would have prejudicial effects on the Territory’s property, especially leasing, and financing laws and arrangements.
In addition, the first respondent drew the Court’s attention to the content of the Plans, pointing to what might be called a certain “vagueness” in their content which made the task of determining inconsistency difficult. This was the kind of argument that was developed in his Honour’s decision at [42], that the determination of decisions in the planning context such as consistency with the relevant Plans: … requires reference to planning principles and policies set out in the Territory Plan. That will necessarily require assessments of fact and degree in the application of those principles and policies for the purposes of making those particular decisions. This then becomes very much a matter which is commented upon by Spigelman CJ in [Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 207] at 719 [56]: Where issues of fact and degree arise it will often be the case that these are matters which a decision-maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than an error going to jurisdiction.
In response to the applicant’s contention that his Honour’s decision had failed to identify and then properly apply the two senses in which the High Court had identified the meaning of “jurisdictional fact”, the first respondent submitted that when used negatively, namely that a jurisdictional fact does not exist, as when a development was inconsistent with the plans, then the application of both senses was almost, if not, identical. Thus, the suggested error, I take it was being submitted, did not infect his Honour’s reasons.
The first respondent also submitted that the approach which the applicants' contend for was quite contrary to the way in which these issues were currently considered and dealt with by the Courts. It pointed to Manuka Business Association Inc and Ors v Australian Capital Territory Executive and Anor (1998) 146 FLR 464 and Hughes v Australian Capital Territory Planning and Land Authority (2004) 136 LGERA 420 which were said to be “illustrative of what has been the traditional approach”. It noted that in the latter decision Crispin J refused to admit an expert report because it had not been before the decision-maker (at p 429). Similarly, in the former case, affidavits from “… various well-qualified experts in architecture, planning and urban design” were rejected (at 470) even though at issue in the proceedings was whether the decision under review was inconsistent with the Territory plan. I note that in that case, Higgins J (as he then was) noted that “[w]hether … the proposed development will adversely alter the scale and character of the Manuka precinct … does not constitute a matter capable of judicial review, save … that a decision to accept a particular view was so unarguably wrong as to make that decision ‘unreasonable’” (at 470).
The first respondent also submitted that the applicants had misconstrued his Honour’s decision and that, for example, his Honour did not hold that the Territory Plan was “merely a guideline” but that the first respondent was obliged to follow the Plan and was bound by it, but that it was not for the Court to reach its own view about the facts.
The first respondent further submitted that of the six judges who heard the two cases involving the Canberra Tradesman’s Union Club, only one had expressed any doubt. That, it was contended, was not sufficient to justify a grant of leave.
Finally, the first respondent criticised the applicants for not identifying with greater clarity the extent and nature of the evidence that would be excluded as a result of his Honour’s decision. The second respondent’s submission
The second respondent’s primary submission was that his Honour’s decision was one relating to practice and procedure and that, as noted in the analysis of the authorities above, was therefore a decision that the Court should not ordinarily grant leave to appeal. It referred to ABB v ACCC especially at [26] and [27] as a case where the Court refused leave to appeal a decision on the admissibility of evidence exactly on this basis.
The second respondent further submitted that a refusal to grant leave would not shut out the applicants from challenging his Honour’s decision on appeal because if they were unsuccessful at trial, they could appeal that judgment and include in the appeal the issues decided in his Honour’s decision.
I interpolate that I raised with the parties the question of whether any kind of estoppel or res judicata would flow from his Honour’s decision were leave to appeal be refused. All parties submitted that this would not be the result and I agree. So far as the proceedings below are concerned, his Honour’s decision is binding (unless set aside). As Diplock LJ said in Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642 In the case of litigation the fact that a suit may involve a number of different issues is recognised by the Rules of the Supreme Court which contain provision enabling one or more questions (whether of fact or law) in an action to be tried before others. Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues. Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined.
Diplock LJ did, however, go on to say Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence: but such application will only be granted if the appellate court is satisfied that the fresh evidence sought to be adduced could not have been available at the original hearing of the issue even if the party seeking to adduce it had exercised due diligence.
This might be taken to suggest that, if the parties do not appeal from the interlocutory decision, they are then bound thereafter. This would be quite contrary to the principle laid down by the Privy Council in decisions such as Jones v Gough (1865) 3 Moo PC (NS) 1 at 12; 16 ER 1 at 5, where the Privy Council held A preliminary objection was taken by the Respondent’s Counsel, that the Appellant might have raised the whole question by appealing from the interlocutory decree made by the Court below upon the admission of the reformed articles. Their Lordships, however, held, that though such a course was open to the Appellant, he was not bound to take it, but was at liberty to reserve the question upon his appeal from the definitive sentence. See also the explanation for the basis of the rule in Maharajah Moheshur Sing v Bengal Government (1859) 7 Moo Ind App 283 at 302; 19 ER 316 at 323. This was followed in Crowley v Glissan (1905) 2 CLR 402 at 403-4. The position was put beyond doubt in Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478 at 483, 494-7.
Thus, the second respondent contended, the error, if such it be (and, of course, the second respondent did not concede it as such) could be corrected and, if necessary a new trial ordered. It was, it was submitted, always a risk whenever a ruling on evidence was made. Further, the case could simply be remitted back to the trial judge which would have some obvious savings.
Finally, the second respondent submitted that to allow his Honour’s decision to be appealed would be a substantial interference with the management of and preparations for the trial. His counsel, Mr Erskine, pointed out that a refusal of leave to appeal or an adjournment would allow evidence to start being collected and preparations made for the trial.
I am conscious that there has been some delay in completing this judgment. That is extremely regrettable and I acknowledge that, unfortunately, it will delay the trial even a little longer.

It seems to me that I must first characterise his Honour’s decision. In my view it is not a discretionary decision. It is, in fact, an exercise in statutory construction. That is not easy in this Territory (see Kingsley’s Chicken Pty Limited v Queensland Investment Corporation and Anor [2006] ACTCA 9) but it is not an exercise of discretion.
Secondly, it does not appear to me to be properly characterised as a decision as to practice and procedure. Whilst the immediate issue was expressed as whether evidence could be adduced at trial, the decision on that depended on the question of the meaning of the statutes and, in a real sense, the rights that the applicants (if they have standing) might have to challenge the decision. If the first respondent had no jurisdiction to make the challenged decisions, the relief may well be different or, if discretion is appropriate, be exercised differently, than if the decision was merely challengeable as unreasonable or because the appropriate procedures were not followed. See, for example, R v Knightsbridge Crown Court; Ex parte Marcrest Properties Ltd [1983] 1 WLR 300 at 312-3; [1983] 1 All ER 1148 at 1157-8.
While the decision of the Federal Court in ABB v ACCC has some similarities, I do not think it is particularly apt in this case. In the first place, it truly was a question of the admissibility of evidence without there being behind that question, as there is here, a question of rights and the entitlement of the applicants to relief. In the second place, the Court was “not persuaded that his Honour’s judgment is attended with sufficient doubt” at trial. It was not a decision where the discretion was solely exercised on the basis that the question was only resolved because it was a procedural decision. Indeed, the Court held at [26] that it was “entirely speculative” whether the material sought to be adduced “would be at all forensically helpful …”. Of course, I have not descended into assessing the material that would be excluded by his Honour’s decision but, as I have found, it is not really a question of the precise material here so much as the right to hold the first respondent to within its jurisdiction.
Thus, it is not a decision for which the authorities provide that leave should rarely be granted. That does not, of course, mean that leave is automatically granted; it does mean, however, that a certain degree of restraint, which otherwise should be observed, does not apply.
Accordingly, the two limbs of the Niemann/Décor v Dart test (as modified for this Territory), if such I might call it, should be considered. I turn first to the question of whether his Honour’s decision is attended with sufficient doubt to warrant it being reconsidered by the Court of Appeal.
I note that, in argument before me, counsel for the second respondent expressly declined to address me on that issue “for the purposes of this fairly low … threshold”. Again, whilst that is by no means decisive, and, indeed he frankly added that “lest there be any confusion, we aren’t conceding that his Honour was wrong”, that is a factor which I can take into account.
I have carefully considered the points raised by Mr Walker, counsel for the first respondent. They are powerful; indeed, I raised some of them initially with Mr S Gageler SC who, with Mr S Balafoutis, appeared for the applicants. That, of course, does not necessarily make them any more powerful.
Nevertheless, they do fly in the face of apparent clarity in the relevant legislative enactments. Further, as the Commonwealth and Territory acts were made by different legislatures at quite different times, one cannot assume that, for example, the Commonwealth legislation was enacted in the knowledge or contemplation of the Territory legislation. It is complex and difficult to see how the two interact.
I am also mindful of the comments of Higgins J in Manuka Business Association Inc and Ors v Australian Capital Territory Executive and Anor (supra) at 470-1: In the present case, the challenge is based upon a contention that in a number of respects the decisions under challenge are inconsistent with the Territory plan. His Honour then quoted s 8 of the Act and continued: It follows that if any of those contentions are made good then the affected decision will have been made contrary to law. Of course, such a finding does not automatically cause the impugned decision to be set aside.
I am aware that his Honour refused to admit certain affidavits, but nevertheless what is there quoted is not dissimilar to the applicants’ argument in significant ways and apparently not consistent with his Honour’s decision.
Given the provisionality of planning decisions, I am not persuaded that the approach of the applicants is unarguable, though, of course, I make no suggestion that it is correct.
Again, the vagueness of the plans and the suggestion that the Supreme Court will become a merits reviewer are troubling issues but not so decisive as to lead ineluctably to the conclusion that the apparently clear words of the statute should definitely not be given the meaning contended for by the applicants.
Finally, I do note that, while his Honour’s decision shows that he was bound by the decision in Canberra Tradesmen’s v Commissioner, doubt about it had subsequently been expressed. That was in Canberra Tradesmen’s v Minister. In the latter case, Gyles J suggested at 165 that the decision in the first case required reconsideration in the light of Corporation of the City of Enfield v Development Assessment Commission (supra). The first respondent submitted that this doubt expressed by one judge was insufficient to raise a doubt.
A careful reading of the judgment of Finn J, however, shows that his Honour also expressed a doubt, saying at 156 “I prefer to leave open the question whether the Minister’s determination for s 114 purposes could be capable of challenge in properly constituted proceedings for judicial review”. His Honour acknowledged that the construction of the earlier court was not “clearly wrong” and that the contrary view “was, and remains, clearly arguable”. His Honour did suggest that it was not for the court on which he sat to reconsider the earlier decision. Further, I note that the third judge, Miles J, did not deliver a detailed judgment and agreed with the other two judges, though he did expressly say that he did “not see any cause for casting doubt on the correctness of the decision” in Canberra Tradesmen’s v Commissoner (at 147).
Thus, there were two strong views suggesting that the construction given by the earlier court on s 114, was subject to a doubt. It is not for me to say that the Court of Appeal would not revisit the view in a suitable case, and this may well be a suitable case.
Further, the detailed and extensive consideration of cases such as Project Blue Sky Inc and Ors v Australian Broadcasting Authority (supra) and the consequent development of the law in this area, may well justify a reconsideration of the approach that was regarded as binding in his Honour’s decision.
Accordingly, I find that the construction of the legislation is a troubling matter; his Honour’s decision has much that is attractive about it, but it is in my view attended with sufficient doubt to warrant re-consideration by the Court of Appeal.
That, of course, as noted above, does not conclude the matter; injustice (to some degree) has to be shown. Both respondents emphasised this strongly.
I am, however, not persuaded that in the circumstances there is any significant prejudice to the respondents, but there will be significant injustice to the applicants were leave not to be granted.
Firstly, the applicants should be reasonably entitled to argue their case at the highest it can reasonably be put. That would mean that, if his Honour’s decision is wrong, it should be rectified to enable this to be done.
Secondly, the real issue raised by his Honour’s decision is not just a question of the adducing of evidence, but of the way in which the applicants wish to put their case and this has a different consequence. Thus, the fact that details were not provided by the applicants of the precise evidence they wished to adduce is not a factor against the grant of leave in this particular case.
Thirdly, there has already been fragmentation of the proceedings by virtue of the answering of the separate question. That is, of course, by no means decisive since there are, particularly these days, plenty of interlocutory steps that are taken prior to a trial and some are significant, requiring extended hearings and reserved judgments. Nevertheless, it is more than merely conceivable that if this issue had arisen at trial, the relevant evidence may well have been admitted provisionally, subject to the trial judge’s findings on the issue of statutory construction, since it is unlikely that such a significant issue would have been dealt with finally within the trial merely on an objection to evidence, but instead dealt with at the end of the trial in the final judgment.
Fourthly, it seems to me that the right to challenge his Honour’s decision on ultimate appeal, if the applicants are unsuccessful at trial, is, in the circumstances, a little hollow. The applicants will be going into the trial knowing that a significant (perhaps the largest or best) point in their case has been ruled out. If that excision is not correct, the trial will be somewhat of a waste of time and will not enable the real issues between the parties to be determined: r 21(2)(a) of the Court Procedures Rules. This would not always be the position, but it does seem to me to be the position in this case.
In all the circumstances, I am persuaded that his Honour’s decision is attended with sufficient doubt to warrant its being reconsidered by the Court of Appeal and that, supposing the decision to be wrong, the applicants would suffer injustice to the requisite degree if leave were refused.
Accordingly, I will grant leave to appeal.
I regret the delay in completing these reasons and publishing the decision. The issues were complex and required some thought. I note that the second respondent did, during the hearing, suggest alternative approaches to the task I had to perform. I have