id ~ 2 76 * 4 IN THE FEDERAL COURT OF AUSTRALIA } DISTRICT REGISTRY ) NO. NTG9 OF 1986 GENERAL DIVISION ) ON APPEAL from an interlocutory judgment of His Honour Mr Justice Beaumont dated 24 November 1986. BETWEEN : THE HONOURABLE BARRY COHEN MINISTER FOR ARTS, HERITAGE AND ENVIRONMENT First Appellant AND: THE HONOURABLE LIONEL FROST BOWEN, ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA Second Appellant AND: PEKO-WALLSEND LIMITED PEKO_ EXPLORATION LIMITED PEKO-WALLSEND OPERATIONS LIMITED ELECTROLYTIC ZINC CO. OF AUSTRALIA LIMITED Respondents COURT: Bowen C.J., Lockhart and Jackson JJ. re PLACE: Sydney ~s, DATE: 24 November 1986 1 | re MINUTE OF ORDER \ FEDE TS. 0.87 OF 1 See Wee | THE COURT ORDERS THAT: \ Nie eae lL. The application for leave to appeal be dismissed. 2. The applicant pay the respondents' costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) DISTRICT REGISTRY GENERAL DIVISION BOWEN C.J.: This ) NO. NIG9 OF 1986 ) ON APPEAL from an interlocutory judgment of His Honour Mr Justice Beaumont dated 24 November 1986. BETWEEN : THE HONOURABLE BARRY COHEN MINISTER FOR ARTS, HERITAGE AND ENVIRONMENT First Appellant AND: THE HONOURABLE LIONEL FROST BOWEN, ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA Second Appellant AND: PEKO-WALLSEND LIMITED PEKO EXPLORATION LIMITED PEKO-WALLSEND OPERATIONS LIMITED ELECTROLYTIC ZINC CO. OF AUSTRALIA LIMITED Respondents EX TEMPORE REASONS FOR JUDGMENT is a motion for leave to appeal from an interlocutory judgment of Mr Justice Beaumont given this morning. The application for leave was listed for 2.15 today before a Full Court at the request of the applicant for leave on the ground the extreme urgency and importance of the matter. of It concerns the listing of Kakadu Stage II. The World Heritage Committee is sitting in Paris commencing today and it was thought that the order which had been made by his Honour should be subject to an appeal to be heard before the order was implemented. The applicant sought an opportunity to show that there was error and that leave should be granted. Under sub-section 24(1A) of the Federal Court of Australia Act 1976: An appeal shall not be brought from a judgment referred to in subsection 1 - (that is an interlocutory judgment) - unless the court or a judge gives leave to appeal. There is therefore a necessity for the applicant to make out the case for leave to appeal from an interlocutory judgment such as this is. Due to the importance of the matter we listed it, as I have said, urgently and in circumstances where, as the parties are aware, the reasons for judgment of the judge below were not yet available. However, this enabled the applicant to have an opportunity of demonstrating, if he could, manifest error on the record without being able to point to anything in the reasons for judgment. We have listened carefully to the arguments and it appears to us that there are complex questions of fact and law to be determined. We do not see, in the absence of reasons, that error has been shown which would require the intervention by the grant of leave to appeal. In these circumstances the application must be refused and the normal consequences as to costs will follow. Leave is refused. That is the judgment of the court: Application for leave refused. Costs to be paid by the applicant. MR BENNETT: Would your Honours be prepared to grant a stay of the order until tomorrow morning, perhaps tomorrow lunchtime for the purpose of enabling an application to be made to the High Court, a continuous stay? BOWEN CJ: If you wish to have a stay I think you should make that application to the High Court if you are going there, Mr Bennett? Since the effect of a stay would be to reverse the order temporarily in effect I do not think that having refused leave we should grant a stay but you, of course, are completely at liberty to apply to the High Court for a stay. MR BENNETT: May I just say this, your Honour, there is, of course no prejudice to the other party if a stay is granted, until tomorrow evening, for the reasons which have been canvassed. There is, of course, a practical difficulty in approaching the High Court this afternoon which, the High Court is in Canberra at the moment and the day is dawning in Paris and it may be that the possibility of being able to exercise a right to seek a stay or an interlocutory order from the High Court would be lost unless we have a stay overnight but I am in your Honour's hands in relation to it. BOWEN Cd: I will hear Mr Conti on it. MR CONTI: We would oppose the stay. BOWEN Cd: You oppose it? MR CONTI: Yes, your Honour. BOWEN CJ: Stay is refused. Court will now adjourn. Decertt, cat thes and the 3 preceding pages are a true copy of the reasons for Judgment herein of the Court Rory Willan - Associate Deed = 24 Normler 1186.