JUDGMENT No. 262, /S3— IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No.G575 of 1987 ) GENERAL DIVISION ) ON APPEAL from a single judge of the Federal Court of Australia BETWEEN: SYDNEY TRAINING DEPOT SCHNAPPER ISLAND LIMITED Appellant AND: JOHN BROWN, MINISTER FOR SPORT RECREATION AND TOURISM AND MINISTER ASSISTING THE MINISTER FOR DEFENCE First Respondent AND: A. GALLERY CHIEF PROPERTY OFFICER FOR THE STATE OF NEW SOUTH WALES DEPARTMENT OF LOCAL GOVERNMENT AND ADMINISTRATIVE SERVICES Second Respondent AND: THE HONOURABLE STEWART WEST, MINISTER OF ADMINISTRATIVE SERVICES Third Respondent AND: THE COMMONWEALTH OF AUSTRALIA Fourth Respondent 2. MINUTE OF ORDER JUDGES MAKING ORDER: FOX, LOCKHART & GUMMOW JJ. DATE OF ORDER: 1 JUNE 1988 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' costs of the appeal, and of the motion dated 27 May 1988. Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules. NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No.G575 of 1987 GENERAL DIVISION CORAM: DATE: ) ) ON APPEAL from a single judge of the Federal Court of Australia BETWEEN: SYDNEY TRAINING DEPOT SCHNAPPER ISLAND LIMITED * Appellant AND: JOHN BROWN, MINISTER FOR SPORT RECREATION AND TOURISM AND MINISTER ASSISTING THE MINISTER FOR DEFENCE First Respondent AND: A. GALLERY CHIEF PROPERTY OFFICER FOR THE STATE OF NEW SOUTH WALES DEPARTMENT OF LOCAL GOVERNMENT AND ADMINISTRATIVE SERVICES Second Respondent AND: THE HONOURABLE STEWART WEST, MINISTER OF ADMINISTRATIVE SERVICES Third Respondent AND: THE COMMONWEALTH OF AUSTRALIA Fourth Respondent FOX, LOCKHART & GUMMOW JJ. 1 JUNE 1988 REASONS FOR JUDGMENT EX TEMPORE THE COURT: The appellant applied under the Administrative Decisions (Judicial Review) Act 1977 - which I shall call the Act - for review of a decision to issue to it notices to quit certain land owned by the Commonwealth being the major part of an island in the Parramatta River where it enters Sydney Harbour and which is known as Snapper (or Schnapper) Island. The appellant based its application upon a number of grounds: a denial of natural justice; that the decision-maker or makers had no authority to make the relevant decisions; that the decisions were contrary to law; that there was no evidence to justify the decisions, and that they were unreasonable. There was a challenge to competency on the ground that the notice or notices to quit were not issued pursuant to a decision under an enactment. There were, in fact, two notices and the second may have supplanted the first. This was not conceded and was not the subject of decision by his Honour and has not been the subject of argument in this Court. The appellant sought and was granted leave to amend its application by adding the two last-mentioned respondents so that 6.39B of the Judiciary Act 1903 could be relied upon. Two matters have been stated as calling for relief under the last-mentioned section, namely infringement of an equitable Proprietary right and the creation of a public nuisance. These matters were not put to his Honour and argument thereon was not developed in this Court. His Honour dealt fully with the submissions made to him, and, in particular, provided an historical survey of the island and the relationship to it of the appellant and the appellant's predecessor, Mr Leonard Forsythe. His Honour was impressed, as must be anyone to whom that history is familiar, with the initiative, enterprise and industry many years ago of Mr Forsythe and those later associated with him in creating on the island a maritime training centre for young people which became well-equipped and an extensive maritime museum. Many buildings were erected. It is not difficult to understand the concern of the appellant when told to leave. The notice to quit served (we shall resort to the singular) gave one month's notice as was appropriate under the lease. The lease having been entered into on 28 December 1931 and the original term having expired, the lessee was holding over. The lease was between The Australian Shipping Board and Leonard Edgar Forsythe. By the Cockatoo and Schnapper Islands Act 1949 the title of the board in the island was transferred to the Commonwealth by a deed of assignment of 15 August 1978. Mr Forsythe, with the consent of the Commonwealth, assigned his interest as lessee to the present appellant. The validity of the notice is not challenged except on the grounds above stated, although we understand from counsel for the appellant that his client is resisting ejectment proceedings in the Supreme Court on the ground, perhaps among others, that his client has a proprietary interest in the land, having in mind the buildings which have been erected by it and its predecessors. Counsel for the respondents did not have = any instructions on this matter and it seeming that it may be some time before those proceedings were determined in that court, we continued with the hearing of the present matter. Although we have set out the grounds relied upon, they all centre around one consideration; namely that the termination of the tenancy and removal from the island of the appellant is sought on grounds of safety, which the appellant says are misconceived and which, in any event it says, can be sufficiently moderated. The reasons given relate to UN-NATO safety measures concerning the transport of explosives, but it is said that they do not, and probably will not have application because of the nature of the operations being carried on by the Navy in relation to the transport of the explosives. Snapper Island is close to a sea route regularly used by the Royal Australian Navy for the transport of explosives. More particularly, it is close to a smaller island, known as Spectacle Island, at or around which lighters on which explosives are carried stage briefly en route from naval ships down harbour to and from a point up harbour to which they are delivered by motor transport. It is plain that Snapper Island is within the risk area associated with explosives on lighters tied to buoys on the Snapper Island side of Spectacle Island. Counsel for the appellant points out that some of the mainland is within the same area, but certainly Snapper Island is much closer. The Navy now proposes to fix the lighters by bow and stern, and this means that some of them (perhaps only two) will be 10 or so metres closer to Snapper Island than were the lighters when swinging by the bow to the buoys then in existence. Extra pylons have to be put in place to allow for the new procedure. The view is taken that Snapper Island should be cleared. The part of it not the subject of the lease to the appellant is already a naval zone. The appellant submits that the UN-NATO arrangements do not deal with lighters in transit, as has been the case with those which stage at Spectacle Island, but if correct this would at the most only mean that extra precautions are being taken. The risk it is said is infinitesimal, as past experience shows, but consideration of the merits of the course being followed is for the authorities and not for this Court which deals with the legality of decisions. We agree with the learned judge in his conclusions and reasons. No case is made out under the heading of denial of natural justice. His Honour looked beyond the question of whether the rules of natural justice applied to their content in a case such as the present, and we can do the same. The most that could be required is that the appellant receive an adequate hearing. This requirement, if it existed, is essentially procedural in nature but counsel pressed upon us arguments relative to rights, said to flow from "reasonable expectations". This phrase has significance in connection with a fair hearing, but does not by itself involve the creation of legal and equitable rights. The fact is that the appellant was told months ahead of the intentions of the lessor, and, discussions and correspondence ensued. At one stage a senior naval officer addressed a meeting at some length on what was proposed and the reasons for the proposal. Then it is said that the reasons were wrong, or at least inadequate, and perhaps further and wider matters were in mind. This type of consideration can sometimes be relevant to the exercise of a power in the wider realm of administrative law, but here what is being considered is a decision to issue a notice to quit: a matter which is of a proprietary nature and concerns the immediate parties. No statute can be pointed to which directly or indirectly controls the giving of the notice. We should not, however, be taken as deciding that on no occasion where a notice to quit is issued by a public body are the provisions of the Act applicable. In this case there seems to have been a perfectly comprehensible reason for a lessor issuing a notice to quit to its lessee. The power to do so unfettered by requirements of purpose as to future use and free from considerations of motive was available and was used. The whole case turned on the matters we have mentioned. We are therefore of the view that the appeal fails and should be dismissed. Before the hearing of the appeal commenced, an application by way of notice of motion was made: (a) that fresh evidence in the form of three affidavits and another document, being a copy of a recent report to Parliament by the Auditor-General be received on the hearing of the appeal; (b) that the Court should take a view of the island and (c) that injunctions should be granted to restrain the further construction of fixed mooring pylons adjacent to the islands mentioned. As to the fresh evidence, the principles governing its reception are well established and need no repetition. It appeared that most of the evidence sought to be adduced had been available at the time of the hearing, although some was not immediately available. No application was then made for an adjournment so that it might be obtained. That which was unavailable is of slight significance, and indeed would not have been helpful to the appellant's argument. Some of that which it was sought to have received by this Court was inadmissible, in any event, in the form in which it was tendered. To admit some of the evidence, having in mind its assumed relevance, would inevitably have led to the necessity to remit the matter to the judge of first instance and quite likely would have required some amendment to the pleadings. The Court therefore refused to receive it. The Court saw no need for or advantage in a view. If the third matter which is mentioned is to be raised it will have to be in separate proceedings which will show fully the basis on which the relief is sought. It could not be dealt with as an appendage of some sort to the present proceedings. The order of the Court is that the appeal be dismissed. The Court is of the view that the appeal should be dismissed with costs, together with the costs of the notice of motion of 27 May. I certify that this and the seven (7) preceding pages are a true copy of the Reasons for Judgment herein of the Court. > Associate: JibrisKiere. Date: 1 June 1988 Counsel for the Appellant: Mr R.A.S. Skiller Solicitors for the Appellant: Star Carver & Co. Counsel for the First,Second,Third & Fourth Respondents: Mr P.R. Graham QC with Mr D.B. McGovern Solicitors for the First, Second,Third and Fourth Respondents: Australian Government Solicitor Dates of hearing: Sydney; 31 May,1 June 1988 Date judgment delivered: Sydney; 1 June 1988