National Trust of Australia (NSW) -V- Heritage Council of NSW & Anor [1999] NSWLEC 104

LEGISLATION CITED: adjournment application based upon anticipation of validating legislation being enacted.

DATE OF JUDGMENT DELIVERY: 05/04/1999

APPLICANT Mr P. Neil SC with Ms S. Duggan

SOLICITORS Solicitor Environmental Defender's Office

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr B Walker SC with Mr J Griffiths SECOND RESPONDENT Mr M Tobias QC with Mr C. McEwen & Mr A Pickles

SOLICITORS NSW Crown Solicitor

IN THE LAND AND Matter No. 40043 of 1999 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 4 May 1999

NATIONAL TRUST OF AUSTRALIA (NSW) Applicant v.

HERITAGE COUNCIL OF NSW First Respondent WALSH BAY FINANCE PTY LTD (ACN 079 751 894) Second Respondent

Upon the commencement of the hearing of these class 4 proceedings in which the National Trust challenges the validity of three related approvals granted by the Heritage Council of NSW in respect of the Walsh Bay Finger Wharf, Mr Walker SC for the Heritage Council announced that he additionally appeared for the Minister for the Heritage who wished to exercise the right conferred by s 64 of the Land and Environment Court Act 1979 (LEC Act) to appear or to intervene, in the proceedings.

Immediately thereupon, Mr Walker on behalf of the Minister, sought an adjournment of the proceedings for a period of six weeks to enable early implementation of a recent Cabinet decision to introduce into the NSW Parliament a Special Bill to validate the approvals under challenge in these proceedings and to terminate the proceedings in this Court. Mr Walker submitted that if the adjournment were not granted, expense and valuable Court time may be expended on hearing the case which may prove a futility, in the event of the contemplated validating legislation being enacted.

Mr Tobias QC for the second Respondent supported the adjournment application and noted that if it were granted, his client would continue the present undertakings to the Court and would pay the Applicant's costs thrown away by the adjournment.

Mr Neil SC for the Applicant opposed the adjournment application, saying that he had only been informed of the proposed application by the Minister earlier today and that his client had frankly been taken by surprise and was embarrassed by the belated application.

The hearing of the case had been expedited by the Court and was fixed for hearing today and tomorrow. The Applicant had prepared for the case and wished to proceed.

Mr Walker very helpfully drew my attention to the recent decision of the NSW Court of Appeal in Meggitt Overseas Ltd v. Grdovic (1998) 43NSWLR 527 where Mason P, in giving the judgment of the Court, comprehensively discusses the relevant principles upon which the Court should exercise its discretion in determining a contested adjournment application where the adjournment sought is founded upon some contemplated legislative action, having an obvious impact upon the litigation, such as that announced by Mr Walker in the present case.

I take the relevant principle to be that stated by the President at p 531:

It is an undoubted function of the Executive to bring proposed legislation into parliament. It serves the public interest in the Cabinet's decision to introduce particular legislation. And there is no presently relevant limitation upon such legislation being retrospective in operation in the sense that the foreshadowed amendment may, if passed, seek to touch pending proceedings.

Does such announcement qualify in any way the judicial branch's obligation to uphold the existing - I emphasise the word existing' - law? And does it enliven a power to grant a contested adjournment of proceedings fixed for hearing so as to enable one party to gain the benefit of proposed legislation to the detriment of another party? The answer to each question must be a categorical no'.

The President's judgment thereafter proceeds to discuss the decided cases including the decision of the Court of Appeal in Sydney City Council v. Ke-Su Investments Pty Ltd (1985) 1NSWLR 246 where the Court, by a majority, refused an adjournment application based upon " the prospect of a legislative change in the situation ". The President cited the following passage from the judgment of McHugh JA in that case (at 258):

Thirdly, as a general rule, it is not a proper exercise of the discretion to grant an adjournment on the ground that it is believed that the law may or will be changed in the near or remote future. As Dean J pointed out in R v Whiteway; Ex parte Stevenson [1961] VR 168 at 171:

` … I think it was the duty of the court when the applications came on for hearing to deal with them in accordance with the law as it then stood …. It would be a cause of injustice if courts could adjourn cases because they had some real or imagined belief that the law might be amended.'

In that case the adjournment was opposed but the principle is of general application.

The President referred to the majority decision of the Full Court of the Supreme Court of Western Australia in Re Minister for Minerals and Energy; Ex Parte Wingate Holdings Pty Ltd (1987) WAR 190, as " a decision looking partly in the opposite direction " from the consistent stream of authority discerned in all the other cases cited by the President.

It is clear that the President did not agree with the majority view, preferring the dissenting views of Chief Justice Burt, who said (at 194) that

… As a matter of principle the submission made by Wingate in its opposition to the adjournment should be accepted. The courts are charged with the high responsibility of administering justice according to the law as it is. A party invoking the jurisdiction of the court must be permitted to seek his justice upon that basis and the court cannot deny him that right because of a reasonable expectation that at some future date the law will be changed and with that change that his rights according to law will be changed. It may well be that his victory, should he enjoy one, will be Pyrrhic. If it is, then so be it. That is a matter for him.

Finally, the President's judgment recognised two situations that may require to be distinguished from the case the Court was considering, namely (i) a case where the adjournment application is made on the basis of the existence of an appeal to test the correctness of the trial decision; and (ii) a case involving an application for a discretionary remedy such as a prerogative remedy or injunction where relief may be denied on the ground of futility.

In respect of the second category of case, the President cited the decision of Bowen CJ in Re Minister for Communications, Ex parte NBN Ltd (1986) 14FCR 344. In this type of case, the President noted "the possibility that it may be proper to have regard to imminent legislative changes", but he expressly did not endorse that possibility.

In NBN Ltd, Bowen CJ had to decide whether to make absolute an order nisi for a writ of mandamus against the Minister. At 349 while affirming "in general terms" the proposition that a court applies the law as it is in force when the matter is before the court and "in general" does not speculate to the future course of legislation, went on to say:

On the other hand, when exercising a discretion upon an application for a prerogative writ or any type of discretionary relief where legislation is actually in progress the court is not obliged to shut its eyes to the realities and to ignore what is taking place. The court may at least take into consideration the facts as they are proved to exist at the time that it is considering the exercise of such a discretion. But even when I adopt that position it raises a difficult question. The court is reluctant to engage in a futility but, on the other hand, it is the only avenue open to a person whose existing rights are being adversely affected to have them protected against action at least not yet authorised by law.

In the result, in what his Honour found to be an " unusual situation ", (350) Bowen CJ held the prosecutor to be entitled to the relief claimed, but his Honour was " not prepared to give an answer which may result in a futility ". Accordingly, his Honour granted the relief claimed with costs, but suspended the operation of the order for 14 days with liberty to either party to apply for further order.

In my opinion, the principle to be applied in the present case is that categorically affirmed by Mason P in Meggitt, namely that the announcement of the Cabinet decision proposing validating legislation does not enliven the Court's power to grant a contested adjournment application.

That principle applies with particular force on the facts of the present case, which involve an expedited proceeding listed for hearing today and tomorrow, where the existence of the Cabinet decision is only made known to the parties and to the Court on the first hearing day in circumstances where there is not yet a draft bill and all that is known of its proposed content is that it will validate the approvals under legal challenge and terminate the present proceedings.

In these circumstances, the probability is that the proceedings in this Court will already have been concluded by the time the contemplated legislation may come into existence, in which event, the proceedings and the Court's decision thereon, can scarcely be regarded as involving any futility.

For these reasons, the Minister's adjournment application must be refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.