MINISTER ADMINISTERING THE HERITAGE ACT 1977 v HADDAD [1991] NSWCA 200

The claimant's submissions were accepted in this Court. The Court was of the view that his Honour had erred in law and allowed the appeal and made an order that the matter be returned to the Land and Environment Court for what was described as rehearing.

I have a strong impression that it is the expression "rehearing" that has been the source of some degree of confusion in the subsequent history of the matter. The expression "rehearing" is one that is sometimes used in connection with proceedings that are described as appeals. It is, for example, sometimes used in respect of certain proceedings in this Court. That is quite a different context from the context in which the expression was used in the order of this Court sending the matter back to Stein J. The proceedings in which the Land and Environment Court will be engaged pursuant to the order of this Court are in no way appellate proceedings.

In the context of appellate proceedings the expression "rehearing" is one of variable meaning. See the judgments of Mason and Jacobs JJ in Builders Licensing Board v Sperway Constructions Sydney Pty Ltd 135 CLR 617. In The Queen v Longshaw CCA unreported (1990) I said:

"An appeal, whatever form it takes, is a statutory remedy which, in specified circumstances, is made available to a dissatisfied litigant. The precise nature of the remedy, and the procedures attendant upon it, will depend upon the provisions of the statute creating the right of appeal. In some cases the statute, properly understood, provides for what has been called an appeal stricto sensu. In such a case the question for the appellate tribunal is whether the judgment or order appealed from was correct on the material which the lower tribunal had before it. Sometimes the statute provides for an appeal by way of rehearing, and this may

take different forms. The appellate tribunal may have power to take fresh evidence, and draw inferences of fact, and its ultimate duty may be to determine the merits of the matter as at the date of the appeal, having regard, inter alia, to any new evidence or changed circumstances. In such a case, however, the original witnesses are ordinarily not heard again.

There is yet another form of proceeding that is often referred to as an appeal by way of rehearing, although some judges have said that it would more accurately be described as a hearing de novo. That is the kind of appeal provided for by Division 4 of PtS of the Justices Act. In such a case, although the unsuccessful defendant is the appellant, the informant or complainant begins and is required to make out again the case against the appellant. S126 of the Justices Act relieves the parties to an extent from the necessity to call and examine afresh all the persons who gave evidence before the justice. It provides that the deposition of any witness called and examined at the hearing before the justice may be read as evidence for either party at the hearing of the appeal if the other party consents or if certain prescribed conditions are fulfilled. Subject to those provisions, however, the evidence is taken afresh."

All that concerns appeals by way of rehearing and has nothing whatever to do with the kind of rehearing before the Land and Environment Court contemplated by the order made by this Court in these proceedings in December 1988.

It seems that when the matter went before Stein J there were directions hearings at which the course of proceedings were discussed. Perhaps as a result of a suggestion made by his Honour or one of the parties the present claimant filed a notice of motion seeking a direction that:

"He has the right to tender such admissible evidence as he considers appropriate not being raised in the matters before the Court of Appeal."

Further specific directions were sought in relation to the admissibility of particular pieces of evidence. The present opponent filed a notice of motion seeking a direction that no further evidence was admissible on the view. Those notices of motion raised two quite distinct questions. The first question was the general question as to whether or not on the rehearing any further admissible evidence at all was available to be led as of right by one of the parties. The second and distinct question was the question of the admissibility of individual pieces of evidence including those referred to in the firstmentioned notice of motion. Stein J appears to have resolved both questions adversely to the present claimant. I for my part would not consider that an adverse resolution of the second matter would have been a proper matter for leave to appeal to this Court. This Court would not ordinarily rule on appeal by leave in relation to the admissibility of a particular piece of evidence in respect of a part heard matter. However, Stein J also made an adverse decision in relation to the first question and that decision is of fundamental importance in relation to the entire conduct of the further proceedings before him. His Honour said towards the end of his judgment:

"Whilst a general rehearing undoubtedly places all the issues at large it does not entitle a party to adduce further evidence as a right. Furthermore the respondent has not convinced me it could adduce the further evidence set forth in the notice of motion."

In that paragraph I take the first sentence to be referring to what I described as the first issue and the second sentence to be referring to the second issue.

I am of the view the Court should not involve itself at this stage in his Honour's rulings upon the second matter. However, in relation to the first issue the position is different. Learned counsel for the opponent has been unable to

URWMINISTER ADMINISTERING THE HERITAGE ACT 1977 v HADDAD (Priestley JA) 3

draw the Court's attention to any authority in support of the first sentence of the paragraph just set out. In my respectful view that proposition is simply incorrect. As I have indicated earlier I suspect that his Honour's opinion flows from some confusion between the kind of rehearing upon which he is engaged and what is sometimes described as an appeal by way of rehearing.

I would have thought that, subject to whatever might be said to follow from the provisions of s38 of the Land and Environment Court Act, provided the evidence in question is otherwise admissible then either party to the proceedings before Stein J is entitled to lead it. It has not been suggested that his Honour's views were based upon the operation in the circumstances of the case of s38 of the Land and Environment Court Act and I say nothing further about that. Rather his Honour's views seem to have been based upon his idea of what was involved in a rehearing of the kind ordered by this Court and as I have indicated that is an idea which I am unable to share.

In the circumstances I propose that the claimant should have leave to appeal against his Honour's decision of 11 September 1990, that the appeal should be allowed with costs and that the notice of motion the subject of the decision should be remitted for further consideration by Stein J to be dealt with according to law.

Priestley JA I agree. Stein J appears to have had in mind in taking the coursethat he did the considerable amount of evidence and time which had been taken up at the first hearing. He appears commendably to have sought to bring about at the rehearing a minimum waste of time and expense. However, I do not think that was to be achieved by the course he followed. I will not repeat the reasons already given by the Chief Justice with which I wholly agree.

I will simply say that Stein J's views seem to me to be based on the idea that the rehearing was going to be a continuation of the first hearing. In my opinion that is not so. There can be little doubt on reading the reasons of this Court in the first appeal in this case that the Court intended by its order to order a rehearing not different in any formal way from a retrial, but having in mind a retrial at which the various aids to avoidance of unnecessary repetition of what had happened at the first trial would be available.

The fact that the rehearing is in my view a new proceeding in which the parties are to be at liberty to put whatever material they wish before the Court does not mean that there are not various resources available to the Court by which the real issues between the parties can be brought to view and means adopted by which the unnecessary calling of evidence or proof in formal or quasi-formal ways need not be gone through.

S38 of the Land and Environment Court Act is not expressed in the same explicitly ample terms as s82 of the Supreme Court Act, which gives this Court power to prevent parties wasting time in formal proof of matters not really in issue and the court was not referred to any other section available to the Land and Environment Court supplementing $38 with provisions not present in it which are present in s82. Nevertheless, it may be that a liberal construction of $38 can go a long way towards achieving what is achievable under s82. In saying this I am speaking of the matters in regard to which the Court has compulsory powers against the parties. Quite apart from this possibility, in the present case it may well be that the parties will agree on a considerable part of the evidence to be placed before the Court on the re - hearing. If there is unreasonable refusal to agree then the Court may have power by appropriate costs orders at the

conclusion of the proceedings to give relief to the party which has been put to unnecessary expense. I agree with the orders proposed by the Chief Justice.

5 Leave to appeal granted. Appeal allowed with costs. Notice of Motion to be remitted for further consideration by Stein J.

Counsel: Appellant - TS Hale Esq 10 Respondent - J Webster Esq Solicitors: Appellant - C Hanson, Department of Planning