° CATCHWORDS ADMINISTRATIVE LAW - Planning and development ~ natural justice ~ development conditions for block of land approved by National Capital Development Commission - failure to consult owners of adjoining blocks with respect to effect of development on amenity ef adjoining land - appellant adjoining owner - claim that amenity of land impaired by proposed building - whether appellant had "interest" requiring that it be consulted before approval of development - whether "legitimate expectation" that such consultation would take place - whether failure by N.C.D.C. to fake into account relevant considerations - whether application of policy without regard to merits of the case. Administrative Decisions (Judicial Rewiew) Act 1977 ss.5(1)(a), (a), 5(2)(b), (£) National Capital Development Commission Act 1957 s.11 Buildings (Desian and Siting) Ordinance 1964 (A.C.T.) 5.6 F.A.I.Insurances Ltd. v. Winneke (1982) 151 C.L.R. 342 ref'd to Re Ludeke (1985) 59 A.L.R. 417 ref'd to Kioa_ v. Minister for Immigration and Ethnic Affairs (1985) 62 A.L.R.~ 321 ref'd to - Council of Civil Service Unions v. Minister for the Civil Service (1985) 1 A.C. 374 cons. R. v7. Commissioner for Town and Country Planning, ex parte Scott (1970) 24 O.G.R.A. 108 dist. Sean Investments v. Mackellar (1981) 38 A.L.R. 363 ref'd to Gurleven ov. Minister for Immicration and Ethnic Affairs (Pull Federal Court, unreported, 24 February 1984) ref'd to Peko-Wallsend Ltd. wv. Minister for Aboriginal Affairs (1985) 59 A.T.LR. Sl ret'd to Toohevs Ltd. v. Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64 ref'd to IDONZ PTY. OCIMITED v7. NATIONAL CAPITAL DEVELOPMENT COMMISSION & ORS. NO. A.C.T. G96 OF 1985 CORAM: FOX, WOODWARD & EVERETT JJ. PI 30 MAY 1986 4 MELBOURNE: i. bet AUSTRALTAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISTON e eae ' IN THE FEDERAL COURT OF AUSTRALIA ree ew ae ) No.A.C.T. G96 of 1985 ON_APPEAL froma single Judge of the Federal Court of Australia BETWEEN : IDONZ PTY. LIMITED Appellant AND = NATIONAL CAPITAL DEVELOPMENT COMMISSION First Respondent AND = SERTON PTY. LIMITED Second Respondent AND: » A.D.C. PROPERTIES (VIC) PTY. LIMITED Third Respondent MINUTE OF ORDER JUDGES MAKING ORDER: DATE OF ORDER: WHERE MADE: THE COURT ORDERS THAT: 1. The appeal be dismissed. FOX, WOODWARD & EVERETT Jc. 30 MAY 1986 MELBOURNE. 2. The appellant pay the respondents' costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. ? AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY CORAM: DATE: FOX J. GENERAL DIVISION ee Vas , ss oe + IN THE FEDERAG COURT OF AUSTRALIA Peete eee ee ee SOR by ig EY, QN APPEAL froma single Judge of the Federal Court of Australia . BETWEEN: IDONZ PTY. LIMITED Appellant AND: NATIONAL CAPITAL DEVELOPMENT" COMMISSTON First Respondent AND: SERTON PTY. LIMITED Second Respondent AND: ' A.D.C. PROPERTIES (VIC) PTY. LIMITED — — Third Respondent FOX, WOODWARD & EVERETT Jv. 30 MAY 1986 REASONS FOR JUDGMENT cree ' ' ras ee gL tee ean attended fo a (e4 ott we ea lle ks pet aiien aac ated AE tS Thi is an appeal | from a decision of Neaves q, . in which , he 'dismissed. an application bE the present appellant made under se hy tthe * cote wore ee oN ee i the Administrative Decisions (Judietal Review) Act 1977. 'The < gacts ° "are fully "and carefully set out in the judgment of his "S Honour and for the most part are not the subject of challenge. If - shall not endeavour t ta recapitulate ther-. 2° the City. 'Area : Leases Ordinance 1936 (A.C.T.) and the proceedings a ed relate to land 'development which has commenced on contiquous , Tand. The appellant was not consulted before approval was given br the first respondent ta the development under the Buildings me etn ~- Mg Tt Design and Siting) Ordinance 1964 (the "Design and Siting Ordinance") or ta the huilding. by the Building Controller under the Building Ordinance, 1972. The first .notice it had of the development was in a newspaper report or notice. ' . The decisiom under challenge is the development approval qranted by the respondent' Commission on 19 November 1984. The land being developed had on ita small building occupied by the Country Womens' Association (C.W.A.). The proposal involved the demolition of the building and the erection in its stead of a six~-storey commercial building. a part of which was to be occupied by the C.W.A. This building has already been . i constructed to around floor level, with some columns and "eel -known : notes on "its land, "relate 'to the 'siting of the at ns - om proposed. "buitaing," having in. mind its size, and to other considerations. some "of which. are "aesthetic. The fact that the westerm side of the building cuns along the boundary with the appellant' s Jane leads to _Feasonable fears that it may have an adverse effect om the 'present 'enjoyment by the appellant of its land. on 'the other' hané. 'na 'Tegal interest of the appellant will A a eS a oe ee he eee See be interfered with. There is no Legislation which gives the appellant, or a person or company similarly placed. a right to oppose the development - and. subject to what Iwill say about . swarcr cm Ft tt ce natural justice, there is na such right at common law. The first respondent is "proceeded against as decision-maker. The second and third respondents are owner and developer respectively of the new building, who were joined on their own application. SL , There were two " stages in obtaining approvals for the proposed development. The first arose from the fact. that the Tease under which the C.W.A. held was a special purposes lease which did not allow the carrying out by owner or developer of the intended purpose. Application had to be made for a change in the permitted purpose, and anew Iease was granted to the C.W.A. which permitted this purpose. The Commission had the function of werent fi ' cats a "2 ee So Tere eter Felts eh Cece rea PRP ST, + TE jepange | it uses and attaching such ". decision. was. , beached. _ or this hatter < on 5 October 1984 by the -*s = oes _ Chief Planner of the' 'Commission (a Mr. Campbell), who was acting sae meat tte ~iunder the, seenoetes givan by "se ef the Design and Siting ' ° ses Se Biter Tt we ae Mad - wt Beye ns - -'Oedinance- Commission" (Mee "Moseler) alsa "Epproved the formal record of the pt A tt terres er st enSd ht aasentetie. Swill aacrencemes a on re a new governing provisions. ' - 8 a alee the application presently under appeal, which was 14 October 1985. for leave ta amend. ta seek orders of review in respect of i" -- these decisions of 5 october 1984 and as October 1984, but leave was refused." c:: separate proceeding seeking relief in respect of . tones -~ + those decisions Was then commenced. but his Honour declined. ito - wee Le ~~ allow it to be. _ heard or considered with the present application. ~ 8 . These applications were gubsequéntly renewed, and again refused, as alsa was. an application. made towards the end of the hearing, to add a challenge under the general law to the decision of 1S November. His Honour allowed am application to add further grounds to the amended application arising from evidence given in the proceedings before him. \ ' -Approval was granted to the particular development on 19 ay ers -s Ot eee ne eae ced eee rsaes prerets as 'then Recessary for the Second and third Pose et Duet OE" building © plans . and "This "was. done, wee "The vespondent Commission" is incorporated under the National Capital Development Commission Act 1957. Its functions . are set out in. S-LL: of _the Act. 'ef "which the first three peo tet sub-sections are: - a - . qet Re See. , - avd "s+ e- -"TLI(L) - The functions of the Commission are to undertake and carry out the planning, development and construction ef the City of Canberra as the National Capital of the Commonwealth. J ey For that purpose. the Commission is empowered to "2 "Some -". provide, or arrange for the provision of. within the Australian Capital Territory. buildings, roads, - bridges, works for the supply of water or electricity, sewerage or drainage works and other mtters and things for- or incidental to. that purpose. eZ) The Commission has power to do all things necessary oe convenient to be done for or in connexion with. oe incidental to. the performance of its functions and. the exercise of its powers." Section G of the Desian and Siting Ordinance deals with powers of the Commission: "6.(1L) Subject to this Ordinance. the Commission is authorized — (a) to grant (either absolutely or subject to conditions) or refuse approval of proposals with respect to the external desiaqn and the siting of buildings and of proposals with Ee: ees: Nae ne gee wae gdomge SE a8 ane « -i-, seen wep IS Ate FE Ok ee, Saye, ne La gs SS ae. we, TPT ee ee ae ae = 'either absolutely or subject to conditions) or refuse an application. for the * purpases "ef section forty-seven of the ; Building Ordinance 1972, for the approval of the Commission with respect to the external design and siting of a building or an 'alteration to & building." vex ec. he. ay oor iw wee eee ale na ee a a aaa rape Agere dace Wie pean uae eee ee "3. °°) The ground under the Judicial Review Act more particularity relied uporm is that of denial of natural justice . (e.5(L)(a)). * The case put. is: that the appellant had an Mot 2 a PAE Some" OE woth Ry pe ee ar ie ake Or aE ALS eS : "Interest" within. the meaning of the "authorities. which entitled fo - cee es tied ' a Pa > it, to he" "heard" that is ta: say orally or in writing, before the 1° e "a ot & a approval was granted. FE da not. know that the nature of the ie errs. 'aa '_. "interes * Was specifically formulated but it was said to relate - - 7" Tee oo ta the adverse effects of the particular proposal on the - Py - ree be - - a Tele . . a beneficial enjoyment. of the plaintife's Iand. Tt is not argued _™ ms vprt T alte ee oe "ae FT that it had a separate entitlement by reason of "Legitimate se expectation". although factors going to that matter were relied uper im aid of the principal submission. " ys " It does not seem to me that the appellant had an " rey ' _ "interest" which gave it the right to be heard in relation to the . "application for development approval. Tt was not. as a | 'corporation. being affected in its corporate structure or in its ¢ ety Rota orocme oc. Ce cry rights. ee Pip de Soe Ties Wy gaeccise, by che second 'ana third caupondents of their rights. It vis to} be accepted. of course, a aa that having obtained the approval. t ist ee pole -e Tt {s common "ground. that the respondent' s land was open: seers Oy arene SE ene! ERUPEIER i atereny ean SF padarwitiesceat (eet for commercial development. and it was predominantly commercial development which had been approved. and was taking place. when the application under the Judicial Review Act. was made. There is Dv amery "no evidence 'that the profits | of 'the appellant. would. suffer by sty coo reasor "of "the 'erection of the respondent' s office building, but even if there were some evidence. or reasonable implication. of this: loss. it would accord with the conventional way of looking at these matters ta regard the parties as heing in competition in _respect of suck, approved: use of their land as they could make. The appellant "could not have any legitimate, or reasonable. expectation that it would be heard before the approval was ™ granted." it had itself made ar application. to add three levels to what "is now a three-level 'building, but we were told at the hearing . that this application. or the conditions desired. had been refused. and that am appeal ts pending. Much of the objection of the appellant flows from the nature of its motel building (which has. open verandahs on the two upper levels). and euroee, ed oe accent SO Q a ee vA wee. sors, Doe ae wee tee ~s read) re eee eH ne, » wee Ri eT ee ae tendo Dae be w we S52 =, te oh ~ - ic = — BO we ae Spe ae we, t = * es Pr at an angle | across, the Block. on. = AGERE on wn er. Ree me a northern end. | 'of the Dbutiaing "the LANE, et ees Lee ge eee Lwhich ith: Sewer pat Be ae sprite MET Set Pen, oe BSS ny Arh a aes Chit posh "werandahs 'from ° which 'clients' obtain. © lee ee ye Wags. + peat tide _ 2S ies! tee + EES Re SS OrskEtag wh teers , ae ae te SE eR eas SOG LSE vat one- 'point only ey metres: from the boundary of the development fe - " Counsel cited " passages from many cases, mostly related . oi ie Ds TF coal aie Cal Be eves a erE ta natural justice in, connection . with individuals. but all the , 'ere ih Lament. WY fae S totes vee on ne . guidance needed is' to. be found im the three 'High Court decisions, a Ne Seer ae then . x FLA. re Tnsurances, Ltd. Winneke ( 1982) 151 C.L.R. 34Z5 Re Ludeke "cL9as) SS A.L.R. €17: Kioa v. Minister for Immigration and Ethnic Affairs (1985) 6Z A.DL.R. 321. (The decision in Kioa had ' not beer handed dowr when his Honour delivered — judgment). Qne ALE erg h PF TE mses ge 8 fe tk SE ey Raion feo Bee . St a Ty oS sees from the decisions not 'ont that the content of the sta _ requirenents "or "natural justice "vary with circumstances. and therefore become a. matter of decision. vim elation to the Te particular case, but whether accasiorr arises to apply them at all is also very much, dependent upon the 'facts of the particular -~ "ys case. As already stated. the appellant had no interest which attracted the rules of natural 'Justice. and the case would not be advanced even if "legitimate. expectation" were relied on. wed fae tN ae - - 7 2 r airy a Tn relation to the matter of "legitimate expectation" Tt ~* should mention one aspect. Attention was drawn "to a manual for oes prayer, general information issued" by the Commission in February 1984 which is described orn its cover. after the words im bold type "Civic Centre Canberra". as "Policy Plan: Development Plan". It 7 yy se starts 4 in barat zr. bY asaving | report eae rent ne 45, 503 Bi Foe, a, io Reta Bae ME, + te 'he Srey st elise eS aa Bee ez. ae Be ate. aa te eae xT SAT a Marae paver ated' ¥ ore" ESS hr e ete es ce 4, SO bay SIA whee 45.7 Yycet 3 t SRY stk "system which 'recognises the varied needs of developers ; ie and. which secures the public interest of good tawnscape A destan "This - 28, achieved by _= process of € negotiated Bait approval.' ey bas Under' < She" generat - ~ heading * "Policies of Building Height and t ao ete Fixe : : "Apart from the "environmental amenity of public spaces, we ~- consideration has. to. be given. to; neighbouring uses and "New| bufidings: 'should respect. the design character of ~ adjacent and neighbouring buildings with elements of an 2 (facade which conform to the scale of those buildings nest aot ated ey, Aa "The planning considerations 'will also include the likely . impact of the propased development om the neighbouring wot light [=~ sound ; re . 7s mk - ote gt however. if the current use and the proposed development _e.is im a commercial policy area, then standards suitable - i. Ga a& commercial area will be the basis of assessment 7; 06s. , notwithstanding the current neighhouring use." : HORAN TTR vue tem a> wen t A t rosa ' ' toe wT! "In my view Pa ts . aie Lee ys omy See vert Sat Wy ee "phat is sal be. . a a 'of sciniope" the 'Commission was "free to apply those "in ° relation ta an "application. as 'ie 'thought appropriate in any + sent Fut ret hae 4 rates eset ae The manual 'goes ons "S21 The Release "Of Nese Sites © 2 Ne ee Es cere, mig tae ee oe SEB NTT ed lala, CNR pant NEY Sie Dale ties AS The W.C.D.C. prepares development conditions from the Policy Plan and Development Plan statements in the - Report. These conditions are more specific than the policy statement as they form the basis of the final Tease conditions. The land use may be more selective. "is. J-"CS83fToer space figures may be specific and conditions ~ , -. veftlecting site characteristics. sun angles, colonnades "le iy beet may restrict development. or site. _ - wo 'T73 ae be ote Lo . woe tt we woo . Ne -* - ot ba om me , , au. ' ' ' hard -3 ' e , .. The conditions: which the Commission TinallIvy determines wot . , way he either more elastic or more resccictive than the *lessee's initial reading of the Policy Plan depending on judgements in land use. urban design and benefits to ' ". Civic at the time of the decision. The longer tern parameters of the Policy Plan are therefore tempered by an immediate assessment of the current economic. social and design needs of Civic." : . Y ' woo, J ft. en . t "es vy Noha nee € tes. 7 . 6 - -? The manual did not suggest a : regular practice of consultation mone existed. see Council of at with neighbours, and of course, Minister for the Civil Service (1985) L A.C. 374. Gord Fraser had there said. at p.401: a Civil Sirvice Unions v. yuh vere © etscs eS ary "begitimace." or 'reasonable, expectation may arise "either Sauk, from ! an express" promise given 'on behalf of a public a Rae rauthority or from the . existence of a regular practice which the claimant can: reasonably expect to continue." is. hoped that - As ~ "the policy" *aocument" indicates. ae "6 os - te nen wet approval under the Design and 'siting Ordinance. will be achieved - se fae by & process. of negotiation. pot AF et te atest toe ei; - - . > = we iS Ta pee, wat ome Spe LR caine ian ras earliest stage- . Soke, — ned ASE" 27 4 a natter of many nonthes hes sear Fgh 4 EIS ed ans 7 negotiations. "This consideration goes some distance, I think, in showing that the cases must be rare when a neighbouring owner can -- Grae ot. "be expected" "to, be brought: inte Sevelspment planning or heard on ust wet what. is pravased. Reliance was placed om Re vy. Commissioner for * 5 wre tins we Towr and "Country. Planning; e ex parte Scott (1970) 24 L.G.R.A. 105, Pa iid x decisior of Burbury lon im "which he made absolute a rule nisi She rk Fess cS. for certiorari. directed. ta. a Commissioner for Town and Country Planning. The Tater had failed ta perform an implied dity to a ree wet SS give notice "of a hearing ' of the 'planning appeal toé persons who might be affected by the 'upholding of the appeal. The case is somewhat remote in its facts from the present, but the case was in any event decided on particular statutory provisions (see also $.342ZR of the Local Government Act, 1919 (NSW), as it stood before being repealed by Act No. 205 of 1979: Environmental Planning and Assessment Act, 1979 (N.S.W.) s.84). comme 8 aw pee etd vom ese Ve eee Ue teen ere ee pei Bet mg fte Pal ST Sy vege ye . acre 'be affected | by 'each, application. These pote 2% << Pied : rte may not "be "insuperable, but 'the difficulty of their 7 wee SSP 4 te tates to ate sce ~ application 'adds conviction "to the 'view "that. "in. 'general. the i= S ', 38 aber inroipe X Fs NR 's Las, . "are hot established in 'thts area of" the las. 'and 'whether some wa eee ctenptn t '' wen | eg tk Oe mB RTT pe ee EE ee tart SEI ag = LY ee nti | , requirements of natural justice are to be invoked may turn on particular circumstances. ALI I cam say is that there are not any such. circumstances in the. present case. eee BHA FORE peeks ait . a a ee nee, E - - es * mLehoughe there « was: not in' ay opinion any requirement "that the Commission give the appellant: a hearing, or receive its "representations. ané go na denial of naturel justice. it does not . woe i" _ follow that the appellant aia nat have standing to bring the "Sau s oe application. and zr well proceed. as if it did. ~ r have mentioned, the "wind aspect. It is submitted that ay ere EAS — IS ee Le it was a relevant | consideratior which was not taken into account (s.5(2)(b)). There is no mention of the subject in the documents relating to the Commission's approval. There wag evidence before _ the learned fudge that it was a significant matter so far as concerned the appellant. The position put shortly, is that the h presence of the new building, with one side on the boundary, is i wed ¥ "sind: 'turbulenc "Twhich "in "some circumstances. 7i~7, ELS Aye Hie, Rte zh: Aprgts fs ais BS rs oi robably. "not £ Feeaiere Z. cont ae gett arenes ot vast te w - ~ If several ae trae nett beet re "tem were an a tests is "that this wind effect is Likely ta be less. i ne fogebr m8 ty . ed Fetal, Boe A wile ew a - . gaee ek Were SE et SE Sa BS ee PT ts Oa ~d@esian and siting of buildings - The wind problen ¢ can be said ta flow ' from, or be associated with. external desiaqn and. more BU ee Tt re em he ge oe - completely failed to "take wind 'factors into account. Even if it i - ~ ee ( - did fail irr this" regard. there is mat. for that reason alone. a xe tt _ situation which. "comes within $.5( 2) of the Judicial Review Act. 74s a =v . eee Se es gt Wind. was: s doubtless a relevant factor. just as many other matters wer we TP ER SS ys aay Me ere age avr were, but it. does not follow that failure to take any one into - Smelt: account results in invaliaity- A decision may involve many - . J relevant factors but the TudieLal Review Act Tooks ta relevance " poe . =~ - of & particular "order. What. is. being referred to are those eee ied . matters which ao 'ta the validity of the decision. and those are toa be found expressed in the relevant leqislation or are clearly implicit "therein. The reference is to the fulfilment of the purpose of the power, 'and. ta maior aspects rather than to detail . (see Sean Investments v. Mackellar (1981) 38 A.L.R. 363; Gurleven abana fhe: (Wo-G14 of eo he Bese a Hee - pe Minister for "Tmmigration and Ethnic "Affairs oe ay rr toma Y BAe BI, Se YRS ee Sips Rage et ety Re ee ON oe AEA tas, aero hi Bs 3983, Full "Courts: 28. February 1984." per Fox. w. ~} and Beoko-Walisend f Teher yt Cts a aon vt ee aes, Minister fee abericinal REfsirs: 1385) 59 a. E.R. SI per ° went ne gh ste ghee hme re as ee ie a Bre Ss wrt sow e '- "svtdence, were of the view "that it. was only with tall buildings. - x ae rete ei ' xl ~~ gay about. ten floors, that 'eine. problems were experienced. The oan Policy Plan feinforced. | this 'conclusion. as italso dealt with Put. wind 'turbulence only i) rr + nee "* "Another war. wind" effect" was ote in 'the circumstances regarded as ue ' t q : & a 6 ae ayy ' at all serious. or worthy of further consideration. Evidence a ealled at the hearing showed. that this judoment might not be Pat at TT Te OPER eh v MERE Spent Cob ee eee a - ees sate . "entirely carrect. but that: is a, -aifferent matter. , " 2 Te is submitted. that 'the Delegate who approved the plans Lee ar 1¢ November did: nat exercise his own discretion. but acted ry - , formalivy. without 'considering the plans for himseif. There seems "6 meresey te alt aie aso nl. a eet - r tf the acts of a: decision-maker Le no basis for this subris: sion. o ~- 2 . are exam. bely- L Swal "not infrequently be found that he has had reference ta various 'Zocunents- and various views, and probably some matters of policy and it will always be possible to ae suaqest ; : ather matters: which he might have considered. but did if Ariz SF = nee ' sep ey oe v not. His own views and experience will be brought to bear. The - avidence {is ta the effect that' Mr. Gilchrist read and studied * > what was put before him and. had discussions thereon with officers ¢ -~ Junior to hin. He "satisfied himself that the drawings were in accordance with the redevelopment conditions which had been Rt ore ' Ww Fa Fr gettled earlier. pre e, Bie %y ve Sang tt Td: 2 . aoe Koay meee 75 ee = awrt ets ar wating Se aly s® pra ae Be mei at" See PRs er a ee ~ Ss - HEs Honour aia not "in his" 'judgment im this case give reasons for iste these. "rulings, ~ 'although. "he "aia "say " that he refused__the vee ~ 9 sao eae pi Maer eas "fe ee "EL 2 ried ates ya Male Tt ° application to" ade a claim under 'the general Lane on the ground. -2 hk =< EAS we hE? that "it was not then Si oetate ta raise substantially different, mean Saeko ee oe 7 ag mare Jere 0 BREED cone Tae Bem aaron Ange YE NS AR SOPAC OME Pitan The Movie we ee ate 2 ee ae eee issues of fact and Taw for consideration. peer ee ee Lk . The 'concern "of 'the applicant was that. if the Sarlier 7, aM eM ge apr ARIAT GIR PRE She Bata g le Te Tn vee . , decisions. were not. challenged. ané& the matters "respecting them "fr ' %s ae we : of, Bose. " "were 'nat before the. Court it 'night. be met- with am argument that nee eR Se ng anf AR Wl 2 AT 1 ir 4, Pole Tat 'by the earlier decisions." sateen dno " ' : bes, a " : < ae = = wha fe = ~ "ed ae ithe fact. is that 'the | earlier decisions have been i. - - nl ea Wye 2 ae Shan oe? merle 18 referred. to quite often during the present hearing, and documents EE. . respecting them have 'been. before us- " While accepting that they r i were made, it "does not seem Bo me that the considerations . * ' affecting my "conclusion in this case have in any compelling way, or any other "material ware "been affected by the earlier decision-making. In. the end. however. tC must say that his "y % Ven pe ene " ~ os f Honour" s vulings: "now in question were made in the exercise of a 2 - a += " ae +" wide. albeit j j udicial. 'discretion and, na sufficient grounds have . ~ : H nN ee .t Bake aa et See ae Rael seeeed ak a learned' " dge™ was. 'corre po eee ent ace aN Age AAAS ey poten eeu ret SR He ae quid Be Stsmisaed. with' costs. x att te, wae saree so etsrags oe Atterthe appeal had been arqued., and judgment reserved. Leen, seg T anette falar _ wos -- : . oe US. aes . 'ané one: or behalf of the others : oe "the: 'Sire respondent ~~ frat eae are ety ont sengbeges 2 nt 7 Sa tees Pog pak e+ uw a i D YS panto pte a ee ee aah Pt oy erie al * a. ceepr we Rigen ee ee were 'Spposed Five affidavits: were filed om hehalf of the first wS3y2) Lipeines tor topg tmatan gs sec Neen wv ~ One = es ota - Fe es GAPS ae. "stttaavte ee reply was filed" or behale 'of the appellant. ta he Fs nN o zeae, yb) PBLef ISUh saa : we are? the Teave s "sought as civen,_ and the other affidavits - _ read. "We were bola by be 'counsel. for the first respondent that the aD Po . . _-aeneral 'gist "of the eviderice souaht to be "tendered was that the oy t re ; sees ne, Sey isin ewceratormnt of its land 1 by oe ; sate ghte we ae allied company) had "Sebensive communications with reqard thereto = - 7 wary re gye Meee ad . { 2 with the W.C.D. c. The pian 'ta 'ad@ three storeys had not been _ - f- - " abandoned... "These, and associated matters. were said to qo to the \ re Po exercise by the Court of _its discretion and. it _was added that i : ". emphasis had "only been placed on 'the exercise of discretion by 1 2. ae ee tad ot wae ao oe the. appellant @uring the argument of the 'appeal. giving a minimum a ! zee opportunity" to "the "respondent | to produce relevant evidence. It . * ° ] wore - ne - i Fee he ok eae SOL eeD spate re bes ~ meek Ata te oe ae ay se associated "company. LE the case was. 're-opened. die hot seek to explain by other "respondents bo. Pate te gre ede : borer t eS el Fr Cae evidence "either. the reason for the late applications, or how it ad nn was destrable, from their point of view, that the 'evidence of the first respondent should be admitted. Tt was said from the bar Fable that they had not until eecently been aware of the whee " ah tee or ae - ap att argos? whee § WE yt wert a approaches ta the W.C.D. ce on behalf of the appellant. and its , oOo sty "What inquiries they might have made, and what they had heard. woulé doubtless be matters to be dealt with We were told. incidentally. that some cross-examinatiom would counsel for the _ be involved. and appellant foreshadowed an _ application to Matters of intention were in set aside a subpoena duces tecum which had been, issued. issue, so we were informed, and it may have been that had the applications succeeded. the case would have had to be remitted to the single tudde. We were of the view that the applications of the second F and ordered that they he and third respondents were without merit. be dismissed. Pee "g * 2. wore wen Mee . 2 NY xt oy t enue te te re mn 2 . add. 'tha ARIE a, Tt nt ee nee tee ow. oe ENE SS ireet t Me St the hearing of an appeal would "be re-opened. Lae Te Sith Se, i nar ees tt ob owl» Sat tpt hs = 4 ": te taste? Sor Ys Tar ES eT ied n 4 eo ary 7 . "'- for the purpose being taken. From beqinning t eee * ¥y of the law is that litigation. n¢ " polic Or Ge RS a et TO, i . an oe @ brought to finality. " os I certify that this and the severeer (: preceding pages are @ true copy of the Reasons for Judgment herein of his Honour | swt fy ead wus - . 1 te a Ct ee See, TOO - ' me tan Be an ret ns Pa roe Eeie Res ae vA. - - - os , an he . . x es Associate -//%-, arr) ! Dated: 30 tay / 786 y . i ~ 1 1 wet TEA SERRE Qe wrt cee RN ete ob so. - : os i) . - . r i? ay 1 . - ' ~ t <1 ' ca 1 7 , . a, 1 t 7 o . -- i ~ . . ' ! : | . . ! - 1 t ~ . * { ; . is t - . 7 in j* i " IN THE FEDERAL COURT OF AUSTRALIA eye ap? Freee vens DISTRICT REGISTRY No. ACT G96 of 1985 ) ) AUSTRALIAN CAPITAL TERRITORY y i ) ) GENERAL DIVISTON - ON APPEAL FROM A SINGLE JUDGE OF THE Roam worst FEDERAL COURT OF AUSTRALIA IDONZ PITY LIMITED Appellant w and. L NATIONAL CAPITAL DEVELOPMENT COMMISSION First Respondent. and SERTON PTY LIMITED Second Respondent and ! 4.D.C. PROPERTIES (VIC) . 7 PTY LIMITED Third Respondent " COURT: Fox, Woodward and Everett. JJ. ° DATE: 30 May 1986 - prace: Melbourne REASONS FOR JUDGMENT WOODWARD J. In this matter I have had the advantage of reading the draft judgment of Fox J.d I agree with his Honour's reasons for judgment and with the orders. he proposes. IT only wish to add a few. thoughts of my own because of the potential significance of the applicant's claim to be entitled to 'natural justice', or Tree ve = BY, view, | more usefully) described. 7 a _ 'The case arises "Erom a planning decision by the first : respondent C'the Commission' ) which. granted a permit for the design and. siting of a six-story office block. The occupier of an adjoining property has challenged. the decision because it was not informed of_the application for a permit or given any opportunity to make representations about. £t. Senior counsel for the applicant concedes. 'that, if his argument is correct, there would be am obligation orn all planning authorities, before granting similar permits; "to recognize their duty to those who are affected by developments that they propose to approve ..-- in every case they will be bound: ta ask themselves the question, * should we notify anybody and, if sa, whom and how?" Im support of this submission, reliance was placed upon a number of authorities, but perhaps the firmest foundation for the argument is to be found in the recent judgment of Brennan J in Kioa v West (Minister for Immigration and Ethnic Affairs) (1985) 60 ALJR 113 at 142-3. His Honour there said, "The presumption that the principles of natural justice condition the exercise of statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest. amounts to a Iegal right. or is a4 proprietary or financial interest or relates to reputation. It is not the kind of individual interest but the manner in which it is apt. to be affected that is important in determining whether the presumption is attracted. Tf a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or oma rr ee 7 ete nee "e individual before he exercises the power. No doubt the matters to which the repository is bound or is entitled to have regard depend on the terms of the particular statute and, if there be no positive indications in its text, the subject-matter, scope and purpose of the statute must be looked at to ° *s ". determine whether the repository is bound or is ".. @ntitled to have regard to individual interests: Water Conservation and Irrigation Commission (NSW) When the oo wv Browning (1947) 74 CLR 492 at 505. repository is bound or is entitled to have regard _ to the interests of an individual, it may he -.. presumed that observance of the principles of . . 2, Natural justice conditions the exercise of the = -~~ ~~, power, for the legislature can be presumed to Fy _. intend that an individual whose interests are to be et +. yegarded should be heard before the power is Se} ¢ """"- egercised. Therefore the presumption applies to "bat -- ++ any statutory power the exercise of which is apt to EP affect the interests of an individual alone or apt ae to. affect his interests in a manner which is bike substantially different from the manner in which a its exercise is apt. to affect the interests of the 4? public. Of course, the presumption may he Po esi > oft tet nae ot hee ete na ~™ ""a-S displaced by the text of the statute, the nature of . ~ the power and the administrative framework created : - a by the statute within which the power is to be - exercised." rte Ve fe If this is to be taken as a correct statement of the position which has been reached in the development of administrative law, then there must be a good deal to be said for the applicant's argument. & permit to site a building hard up against a " common ; boundary, or to butid a structure high enough to deflect winds downwards and create turbulence, or to present a blank wall to observers (ail of which are alleged in the present case), may have minimal effects on the public at large and yet greatly affgct the Y enjoyment by the next door neighbour of his property. This would : i 'seem to be an 'interest' of the neighbour within the meaning used i ASE ke L7 aint 5 x fe ney "qualification, whitch would have "limited the 'interests' giving 'proprietary or financial'; ww BY 2. rise to entitlement to procedural fairness to those which were "see B.A. I. Insurances Ltd v Winneke - - £1982) ASL CLR 342 at 412, and Re Ludeke; Ex parte Customs , wth eta Tee t than S seh -# ee ee Y tyes ee wes + deen ok "officers Association of "Australia (198S) SS ALIR 483 at 490, rig te we Ree ew ne eet "AER 417 at 427. And fin Kica'''s case, Mason J at 126 said, " generally speaking, when an order is to be eon made which will deprive a person of some right or interest or the legitimate expectation of a vv 7D asters benefit, he ig entitlea to know the case sought to be made against him and to be given an opportunity of replying to it. {Authorities citedi. The "yeference ta 'right or interest' in this > formulation must be understood as relating to personal liberty, status, preservation of -livelihood and reputation, as well as to proprietary rights and interests." ca afar weet - ae nena - - 1 Deane J, at 147, agreed with Mason'd's reasons for judgment. Se sere Sf a 20 . ~- "ne 148 his Honour said, sy m ans _ to the judgment of Mason J in the F.A.I. Insurances case -°"In the. absence of a clear contrary legislative intent, a person who is.) entrusted with statutory power to make am administrative decision which directly affects the rights, interests, status or legitimate expectations of another in his individual capacity (as distinct from as a member of the general public or of a class of the general public) is bound to observe the requirements of natural justice or procedural fairness." ! t. t bs ' ry Cy Gibbs Cd, who. dissented, referred (at 118) with approval where he said, (above) . te remains to be. seen " whether the view of Brennan J, "The { fundamental. rule is 'that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power ...+ " : PP i cases where the exercise of the power affects rights im the strict sense. It extends to the exercise of a power which affects" an interest or a which has not yet been endorsed by other judges of the High Court, ,wAAL Prevail~ _Even. tf it _ does t am not persuaded that the present. case would be an. appropriate one in which 'to. apply it. In spite of the "peeeping nature of the submission on. behalf of the 7 each planning case still has to he i ymin shee applicant, referred to above, determined. im its own legislative setting and on its own facts. Soeaies Sad bea Sheetal ate oe aes . >, Se. a ; Te legistative setting here is that the general town -ost fs planning for the area in question has: been performed and is not in The applicant concedes: that it can have no objection to Te has a penatitentent. — dispute. a substantial building being built on the subject. site. applied for a permit to add three storeys to its own building. ry ae toa WUT te eee pee * _ The decision which is challenged relates to the detailed siting and external design of the building. The Buildings (Design and Siting) Ordinance 1964 (ACT), under which the decision was. made, provides in ss.6 and 7 as follows: "6. (Ll) Subject to this Ordinance, the Commission a is authorized - : type eis alee eee to grant (either absolutely or subject to conditions) or yxefuse approval of 'proposals with respect to the external *design and the siting of buildings and of Fproposals with respect to alterations affecting the external design and the siting of buildings ;- sac woe C b) "fnot relevantI e, ha, on Te La Cnot. "yelevantl 7 os : : - = - (2} The 'Commission shall not refuse ar Sree app roval under this Ordinance unless the Commission are let Sis satisfied that it is necessary to do so for the oo 'purpose of securing the carrying out or observance 70f the policies of the Commission with respect to 7 the planning. and development of the City of - 'Canberra. ast . ; en Se ee er, ers sins Tenis panne drei era Dat mol, wate aA ~~ Fe ~ The erection or alteration of a building shall not be commenced, carried or or completed. 'except in conformity with proposals approved in writing by the Commission with respect to the - external design and the siting of the building, or aoe "S 2of the building as proposed to be altered, and with RE es iets Thad [ sees. ' fe kets 5 FEL: i , Se f ¥ we eg atee (ne There is certainly nothing in these provisions which ' ; atoll. . suggests: am obligation or the Commission to inform neighbouring occupiers that an application. has; been made, and to seek their views upors it. Im fact the Commission is required to approve the application unless it fs satisfied that it infringes the city's planning policies. 7 - . It is true that the Commission can impose conditions; and no. doubt some of these might be designed to protect the interests. of neighbouring: occupiers. In this sense the Commission would be "entitled to have regard to the interests of the individual before CitI exercises the power", to use Brennan J's words (above). But the chief purpose of town planning is to Hy require individual owners and occupiers to comply with various | ee ENE ee ee tee TN 1 pow t fata wr ars ager eee! ve 7A PAY conan " sngormation from other "landowners o or occupiers before it can carry ee ce Other town planning authorities, such as elected setae , - Pave ew s a -. 'expert body, 'such as "the 'Commission, " should not. Since the oa rE ee raed net " re VI UPA AS relevant. "Legislatior: Takes no provision for 'notification to other Be AL Ab ee eRe REIGATE at Nee te ete occupiers, the receipt of submissions by them, " the giving to them of reasons for decision, or appeal by them against the grant of a _Permity. I de not believe these apparently deliberate omissions. i ee ie - - Nevertheless I would accept that. a neighbour (of an applicant) whe is particularly affected by a an improper, unlawful or erroneous: decision of _an. authority such as the Commission may be a person: aggrieved within the: meaning wt the Administrative Decisions (Judtietal Review) "Act 1977 ('the "ADUIR) Act'). Tt was said by Ellicott J im Tooheys [td w Minister for Business and Consumer Affairs (1981) 36 ALR 64 at 79, ; "The words 'a person who is aggrieved' should not, in my view, be given a narrow construction. They should not, therefore, he confined to persons who can establish that they have a legal interest at - stake im the making of the decision. It is umnecessary and undesirable to discuss the full import of the phrase. Io am satisfied from the - "broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it ' z : : mites gone alk — pay A fat Teast covers a person who can show < a grievance * which will be suffered as a result of the decision complained. of beyond that which he or she has as an ordinary member of the public." : : Rhee Mey "there. may be & large degree of overlap betwcen the' 'concepts of * a person who, is aggrieved" and a Paes cM es — person entitled to "procedural 'fadeness' . However, I do not es believe the concepts can be equated. oo , Eda sibtm, Ds tt is eight 'to equate the interest which tends to attract the principles of natural justice with the interest which, if affected, gives standing at common law to seek a public law remedy .-.", r would, with respect, suggest that there may be cases where the Big nh tue le hoe Rte Fo . language and. schene of the . "Tegisiation call for attention to. individual interests (by ae "decision-maker without giving a ' gorresponding right toa those "individuals ta be heard. The Court has: previously rejected the argument that. the attraction of the | Operation of the AD(IR) Act to. decision of an adninistrative 1 Character™ necessarily implies that the decision-maker is obliged ta. accord: procedural fairness. "(see Capello v Minister for Immigration and Ethnic-Affairs 1980 2 ALD 1014 and Sezdirmezogiu v Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561). Similarly, I do not believe that a person who can establish that he is aggrieved by a decision must necessarily have been entitled ta procedural fairness. The concepts: are different, although the tests to be applied im determining those questions. may be similar. ' Ie may be the case that a person who can establish that he was ' entitled to procedural fairness in the decision-making process will necessarily be a person aggrieved by a decision, and ' - 2 was. any error by the deci ston-maker in the . present case. > of review, if he 'can establish that ears ss 2 wa Jha Toft natural "fustice occurred (s. S(1) (ad). tm peed i. Steg a - a ots ethene ae te tte Paro hen wre ce ' Sfustice, it is 'Rot. a "Conclusion that necessarily follows from the structure of the legislation. mo ye - ae setae PRE ere yt nme elne GE a eee ete ny ae tere - After it had reserved its decision, this Court was asked. by the respondents to re-open the hearing of the appeal in order to: allow fresh. evidence to be called. __rhe evidence proposed row wa moe & a eS ga ee related to the applicant' s likely use of its own "land. The Court. rejected this unusual application and reserved its reasons, which ' are now giver. - "4, 04 ad . «© Ir rejected the first respondent's application on the ground: that 'tue evidence proposed was- available to itat the time the appeal was heard. ~ r rejected the second and third respondents' parallel application on the grounds that the evidence would be complex, contested and not appropriate for consideration by am appellate court. As toa its probative value, the evidence would have added little to material already before the Court and would have related only to @ possible exercise of discretion against the appellant if it were otherwise successful in its appeal. For these reasons the applications were rejected with an appropriate order for costs. PEE | - -* || : l t t It | . - : t - iz \ - ; . J | - . - - ee . - . a . 4 . a ' ° - . _ 4 1 . . . - =~ - Lal i. 1 mor - oo. - - 1 . - . . fo ; - ; - i i - rooo - rt f ' ' pr b "AUSTRALIAN. fee med wee, DIST sacar "ey ca Sah he f the Federal Court of ustralia : . . RO Oe neoSes Te sy em cy APpellant First Respondent FOX, WOODW FAR ER ee ae wie pea ayes rien SRSA A 2 aes Se oo 5 MTR ATL "advantage - "of reading. in "Graft Form' 'the yer fete Sine igs " fvowedtios mtb) Yee eee rete Sw AL fetta gt nee magee ae by eee * for, Judgment - af. Fox. i 'and? Woodward ro Ir agree with | s su * Uda EOLA ath tee a MGe Nb sieht atte lt Poe My ieee the reasons which each has expressed: "and: 'the 'orders. 'proposed _~ TY SEE Sy. <Ek yh ugh Sah as, ». Poesy RRS haces Sees mein Sa veores etki re + aed Severs eee es WR age inn Er age YOO SN EE Eee Lier Mytlg et Ses = : RE TSR ae ish. only to add some: brief comments. 'om the primary SSE, UE rare 2 F _ wre ea Prpet aS 7 argument for" "the appellant that His Honour was in error in om et wee OR a a - "ae oa his conclusion that the first—named, respondent, the National eaten anes =e ate Capital 'Development - Commission: C*the Commission") was not 1 tke ~ tae * bound by. the rules of natural _Tustice to afford the appellant is : wort ages Tome eS Ble a are "Oppartunity® x stat an ~~ - are approval for the: proposed development om the subject land. was "She + to" be" heard" "hefores the design and siting © SIEM ys eee sri a nee fa SE aT sie ASS The argument of senior counsel for "khe appellant at ce its highest was that im the context of the National Capital - Development Commissiom Act 1957 (Cth) and relevant Australian > capital, Territory Ordinances, in particular the Buildings SHEA ESS te thas RP cade Is 0 Watt ces een? i *% "A _fesign: and Siting) Ordinance 1964, the Commission was under Soa 8 cam 'implied, commorr Taub obligatiarn, in virtually all cases of mie "proposals for 'approval under the Design andi Siting. Ordinance, RO spon oY -7F eo afford & perso in the position: of the appellant im this ca case ar opportunity to be heard, or, im the words of Aickin J H : ves im HeatIey y * Tasmanian Racing and Gaming Commission (1977) ie 2 " $37 CLR S87 at Pe SIé,. "to make representations [to the — ie ide Commisstony on nis, Out behalf which it must consider before CE. - "taking action™. ° - - - ax . La - wok . 7 es: would. not 'be proper, in my opiniom, to reject such ~ Hl , arm argument merely by reason of the manifest extreme 5 Hh, 7 ; administrative inconvenience, delay and expense which uw ? - acceptance of it would entail or the uncertainty as to how i. ~ the Commission would lawfully comply. with the obligation. i yee We eu rae Ta42—3° iets by 'Woodward. To tn my "opinion, ee a PPI ee Sots Sage eee Suns ky to ee : ea Swett. "wrespect,. the * propositions" "propounded | by "Brennan IL in iis Ora ape kheg pT "nat Beara ttt ree wee oe Rr od Ab etre tee OT are mo . woe ao FF. Keng ethat extract must be considered strictly "in "the" Tight of "the: Cea ie Wide "qualifications: 'to which they were 'expressly made subject pn LE tre wet These qualifications included the text of "the | "the. "subject" matter, "the scope and purpose iT eg fe te Shee ial ee hee -of the "legislation. and "the administrative framework created oe, by 'the statute within whiclr the power is to be exercised'. "For the purposes: "Of "the" "present. case, there should, in my opinion, be added _ to- these factors" "the report of , the 'Commission 'ahich "in "tesa * "recorded. its "Policy. Plan and NS tela" Mee Kept ee ah ore Lee i... Development Plan', _ te which reference is made Tater in these SES part com aa re et cee ee Se ee gh ees tap, ty gant .' uae nome ar SO Ne 3 Wrath act eg seanlnbocen Ata Ieee meme, No peepee Poe) # emai reasons: 'for "fuagmene? we eb ee . Nore a «The Commission is invested with wide powers to enable od PET ee Sine cee ote + peal EA rw, Bw t oF the Cfity- af Canberra"™ Cs. "rE of the National Capital | 7 wow ete eee _ " wns wan, Bre ; Development: Commission Actp. "oe it "te "carry. out the planning, development _ and construction | References. have beem made im other judgments to the "authority conferred orm, and the obligation imposed arr, the Commission by the provisions of s. G af the Buildings (Design re Commission to 'secure "che carrying out [and] observance of — the policies. of the Commission with respect to the planning : and development of the City of Canberra". These policies are a stated im the report by the Commission in 1983, which was. ; tendered im euidence. and is. referred to. in detail in the *. judqment of Fax I. ° The report was formally adopted by the | i if { _- Commission and forwarded to the Minister for Territories and outs Local Government, in accordance with s. 12 of the National sre Capital Development Commissiom Act. _ "e A 22 tit array ne at SM td h i BS, te SR AY ars ae "Against. this. "Teqislative™ "background, = ~ io, Se AR Be NOI PER LL DERE EE ogee PRE AT SRR Sve lek tebe the "administrative framework which "existed, Ye go ® wets aay, feenY Sa pee en ee tee tH TEBE wets site eee RS EET ETS Soe eT consider", there is- any -Tawful 'basis for "the 'Gmplication of a aa C5 a tart RES oe ty Yer wees o'r Sok Bie ent pnw e one eo eater ite requirement &- that,_"the- "appellant. should have been- 'apprised of * Boa bs Fens are AS GES ey EN SME Bag tee th a ee ee se Seer the application "and 5 2M. ee some - "unspecified | manner giv en the Bou z- "ag 12 AE Ld SERS BER: HERAT ade es See, eR mF crower eee eA Bt tr oe "ert a Fay ee ieee: "opportunity te "make 'representations, 'which ait seems. te > toss Me winkse R Ty BNI Rae EMCEE. ta SSegee : pliant af the evidence on the _ hearing 'of "the application, Mines: ae, oF * 1 ty sper ERE Le yntyg Were read S > odd = would. have beer: disputatious, protracted and inconclusive. ono By et ages vee ean of universal as. tent aha Ve 3 'Tt is. 'difficult © ta ~suagest principles application in this area of administrative law because, _f wet et I -saic' én 'Heatley ¥ Tasmanian Racing Commission (1977) to. cede em) iE 137, CLR' "487, at pp "499-500. wrt is plain that each statute z must be separately examined | as 2 'whole and that, as Barwick SY ane De ~ meaty, ow "CI sate tin Twist v "Randwick Municipal Council (1976) 136 CLR > a 8 ane : cae Rete CRN be Cte Fant ae teh ee tat oe 106. at p. LITT "there is no rule which can provide in every case am answer by its mechanical applacation'". It is for - " this. very reasom that cases such as R. vy Commissioner for - "Town and_Country planning, Ex parte Scott 24 LGRA 108, a decision af: Burbury Cr im the Supreme Court of Tasmania, om Le ee Mant Po teers Which "strong reliance. Was. Flaced by senior counsel for the — ne ban ht =a eee ste cw: op shrapeeLlant, should'. he , distinguished because the statutory — "3 7 basis for 'the challenge ta the administrative omission im S. "that case was very 'different ta the statutory and general a a eT Dae : 7 factual background in the present case. ' m ak "> a unanimity "among" ther "judges | "of the High Court of Australia, "30 concerning the nature "of an "interest which will attract the implication of & duty om the part of an authority in the position of : the Commission to fulfil its functions in ". accordance with accepted principles of matural justice. "|" However, that fact does not affect my opinion that, im the circumstances of this case, no such duty could be implied. . ! % Y ' fa ! whe , , "oe < " Ae ' cod ' Lote ra' spot eee, rye, ry wt ' * er on) as pean Roe Nevertheless. as" do- "other . ie es REET 7 ss Ae Pee eet renee Le! judges ~ "OF" "the" "court "hat "che "applicant had 'status "under the cs . mE PEER oe Ne ee ee epee Bom oe ote os, eh Sn Tn pm Fatt? wee cere AdMinistrative Decisions' (Judicial Review) Ack 27T r (Cth) as Sasa oe fete 2 are : = ese fee eS 'Woerson ~ aggrieu peeved", and tC agree th i eey " aes pat A PS sath cg nag Ee 8, were ete: SS - yu determined on that basis.2 2. have considered "For not, allowing "the appeal som cany_ 'of the grounds ox petit Ween Mhoae Wide, TEL Pape aaa npn -E concur in then and cannot usefully add to them. "on "hearing ee the' appeal and before judgment had. been delivered, 2 ose eet two- notices of Motion were. filed, one dated 9 April 19846 on wba i swe, seme. ° "behalf oF the "firstcnamed respondent, and the second dated id Pr Sahel LEN Tone ee -_ sewed dane Pr re rete Sb sree ot dat tenet sed ee "- 37 .14 May 1986 om behalf af- the second—named and third-named respondents, seeking leave to reopen the hearing of the appeal - Far the purpose of adducing further evidence in P after hearing argument, the. "Court dismissed both peeaalay a -' "hotions with casts. I comcurred in that decision. I agree - et with the _vieus row expressed by Fox J in reTation to the Beer ge Me te Fy = (men mere ee ee ~ 7 er te a a >