As can be seen, his Honour's order proceeds on the basis that there had been a matter "referred to it by the first respondent"; namely, the Minister, who was the first Respondent before Talbot J.
6 On this basis, Mr Rares indicated that he would seek leave to file a cross-appeal. This would, no doubt, have also entailed leave to amend the class 4 application in the Land and Environment Court. The Court proceeded to hear argument on the basis that some kind of amendment to the application and cross-appeal would be sought in this Court. No such document was prepared and filed in the Court, but its general nature was understood by the Court. Mr Walker SC, who appeared for the Appellants, made submissions on the assumption that some such document would need to be brought into existence.
7 The issue that arises pursuant to proposed pars 7 and 9 was not raised at any stage prior to the hearing of this appeal. It was not in issue before Talbot J. Nor was it raised in prior proceedings between the parties before Bignold J of the Land and Environment Court, which proceedings concerned an allegation of inadequate time given to the South Sydney City Council by the Boundaries Commission for purposes of making submissions to that Commission. Those proceedings were settled between the parties on certain undertakings, which it is unnecessary to set out.
8 The points now sought to be agitated arise because of notices that were published, being the formal gazettal of the referral to the Local Government Boundaries Commission. In addition to the identification, in that referral, of the areas proposed to be transferred from South Sydney City Council to Sydney City Council, there was a sentence at the end of the notice that read as follows:
"The Local Government Boundaries Commission may not hold an inquiry on this proposal."
9 The statutory scheme provides in s218F for referral by a Minister of a proposal to, inter alia, change boundaries "for examination and report to the Boundaries Commission". Pursuant to s263 the Boundaries Commission is required to examine and report on matters referred to it by the Minister. As I understand it, the submission of the Respondent is that in some manner the inclusion of the sentence at the end of the notice of referral, which I have quoted above, infects the whole of the notice in such a way as to render it other than a proper referral.
10 The issue posed by par 7 of the draft amended Notice of Contention as quoted above is that it was not a valid reference because it purported to prohibit the second Appellant from holding an inquiry and prevented the second Appellant exercising its functions under s263, including particular reference to s263(2), which authorises the Boundaries Commission to hold an inquiry if the Minister approves and obliges it to hold an inquiry if the Minister directs.
11 The Court did not hear submissions on this matter. At one level it raises a question of law which, in accordance with the authorities such as Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and Water Board v Moustakas (1988) 180 CLR 491, the Court would permit to be agitated for the first time on appeal. This is if it raises an issue which is a pure point of law and does not give rise to matters that could have been the subject of evidence.
12 Mr Walker did not concede that there would be no matter of evidence in accordance with the authorities of Suttor v Gundowda and Water Board v Moustakas. He submitted to the Court that he had had limited opportunity to investigate that matter, given his recent notice of the late application by the Respondent to agitate this issue for the first time on appeal. It is not necessary to determine the matter on that basis.
13 Mr Walker also directed attention to an issue of estoppel that could arise and which would plainly involve the taking of evidence in the consideration of the factual circumstances that have occurred in the proceedings, before Bignold J and, particularly, the proceedings before Talbot J from which this is an appeal.
14 It is clear to me that an issue of this character is not appropriate to be agitated for the first time on appeal. Questions of estoppel may very well arise. The role of estoppel in public law is not the subject of a clear and settled body of doctrine. There are circumstances in which an estoppel operates. It is by no means obvious to me that it would not be capable of arising in the circumstances of this case.
15 This is an issue that has agitated the public in the areas affected and also the various participants, both the city councils and the State Government and various other relevant authorities, for some considerable period of time. There has been a considerable body of litigation. It is obviously desirable, if at all possible, that that litigation be brought to a rapid conclusion. That would be a factor indicating this Court should grant the leave sought to agitate this matter for the first time on appeal. However, I am not convinced that it can do so without substantial delay to the hearing of the appeal.
16 The Respondent is not necessarily cut out from agitating this issue in further proceedings. It raises matters that could be raised in new proceedings, perhaps in the Land and Environment Court, challenging the Boundaries Commission. Such proceedings would no doubt be faced with all the arguments for estoppel to which Mr Walker has referred.
17 I would not wish to be seen to be making any comment about the validity or otherwise of either the basic submission made by Mr Rares SC on the issue of law, or the issue of estoppel. This Court has simply not had the opportunity of investigating the factual issues that arise, nor has it received any relevant legal submissions. However, if any further proceedings either challenging the Boundaries Commission or challenging the final decision of the Minister, pursuant to s218F(7) of the Act, were to be taken, no doubt all of the issues to which I have referred would be agitated.
18 I am not suggesting for one moment that it would serve any particular public or legal interest to pursue these matters in that manner. Nor do I want to be understood to be making any comment on the prospects of success. This Court has before it an appeal in a matter which it has treated with expedition at the request of the parties, and which it is appropriate to continue to treat with expedition. The application for leave to file the amended proceedings and cross-appeal would further delay matters in a manner that, in my view, is undesirable.
19 This Court should hear the case in the form it has been for some considerable period of time in the Court below and in this Court. If there are to be any further proceedings then the various issues to which I have referred can be determined then. They are not issues that it is appropriate for this Court to deal with at this time on this notice.
20 In my view, the application should be rejected.
21 MASON P: The legal rights asserted by the respondent in the issues covered by pars 7 to 9 of the draft amended Notice of Contention are by definition said to be enforceable by proceedings in the Land and Environment Court. The capacity to raise those issues and to litigate them depends upon the due procedures of that Court. It would be necessary for the initiating process in the instant proceedings to be amended before those issues could be tacked on to the present case and there would need to be a consequential cross-appeal.
22 That amendment would involve a fundamental departure from the assumption upon which the case was litigated below. Indeed, a departure from the very basis of the declaration sought and obtained by the respondent in the Land and Environment Court.
23 The Court of Appeal's jurisdiction in this matter is an appellate jurisdiction. That jurisdiction, like the jurisdiction of the Land and Environment Court, is exercisable in accordance with rules and procedures which reflect fundamental public issues, including issues of fairness and finality.
24 In Federal Airports Corporation v Multicon Engineering Pty Ltd (1998) 47 NSWLR 631, this Court held that a party is not entitled to have a new point raised and decided on appeal simply because all the facts have been established or the point is one of construction or of law, even constitutional law. It remains a question of whether the appellate court may find it expedient and in the interests of justice to entertain the point.
25 Reference was made in my judgment, with which Gleeson CJ and Priestley JA agreed, to the High Court authority in University of Wollongong & Ors v Metwally (No 2) (1985) 59 ALJR 481. I will not read what is said at p 645 of the report, save to draw attention to the fact that Mr Metwally ran one proceeding in the High Court assuming the constitutional validity of a Federal Act, he contending that it was inconsistent with a State Act, and then launched a second proceeding in the High Court challenging the validity of that Federal Act, being the Racial Discrimination Act 1975. It was in that context (not appellate jurisdiction but original jurisdiction) that the High Court said that:
"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."
26 I therefore agree with the order proposed by the Chief Justice, basing my view on two bases. First, it is not in the interests of justice to allow the point to be raised in these appellate proceedings. Second, as a matter of discretion, the point is raised too late in these expedited proceedings. The lateness is indicated by the difficulty in which the late raising of the point has placed the respondent in marshalling materials and arguments referable to the Suttor v Gundowda point.