Houston v State of New South Wales (No 2) [2021] FCA 637

Federal Court of Australia

Houston v State of New South Wales (No 2) [2021] FCA 637 File number(s): NSD 1513 of 2019

Judgment of: GRIFFITHS J

Date of judgment: 11 June 2021

Catchwords: PRACTICE AND PROCEDURE – interlocutory application by respondent for summary judgment under s 31A(2) of Federal Court of Australia Act 1976 (Cth) –claim for declaratory relief that Native Vegetation Act 2003 (NSW) and Local Land Services Act 2013 (NSW) are invalid – administrative law challenge to Land Management (Native Vegetation) Code 2018 (NSW) (Code) – whether no reasonable prospects of success CONSTITUTIONAL LAW – s 51(xxxi) of the Constitution – whether s 51(xxxi) extends to State legislation – whether State legislation conditioned on grant of financial assistance under s 96 of the Constitution – where applicant contends impugned legislation "embeds" Commonwealth purpose – whether s 51(xxxi) extends to State legislation where no formal or informal bilateral agreement – where no invalidity of Commonwealth legislation pleaded – whether no reasonable prospects of success CONSTITUTIONAL LAW – whether acquisition of property – whether "benefit" accrued to State or Commonwealth – acquisition requires accrual of identifiable or measurable benefit or interest of proprietary character – whether acquisition through "restriction on use" – whether acquisition through alleged requirement of positive land management – whether acquisition through diminution in value – whether no reasonable prospects of success CONSTITUTIONAL LAW – whether proportionality or structured proportionality applies to s 51(xxxi) – whether no reasonable prospects of success ADMINISTRATIVE LAW – whether Code is ultra vires the LLS Act – where LLS Act contains broad objects and Code contains prescriptive checks and balances based on Executive policy choices – whether Code invalid due to unreasonableness or disproportionality – consideration of high threshold test for unreasonable disproportionality – where complaint directed towards merits or equity of Code – whether no reasonable prospects of success