AFG Talons Pty. Ltd. v. Blule Mountains Conservation Society & Ors. [2004] NSWCA 142

New South Wales Court of Appeal

CITATION : AFG Talons Pty. Ltd. v. Blule Mountains Conservation Society & Ors. [2004] NSWCA 142 HEARING DATE(S) : 29 April 2004 JUDGMENT DATE : 29 April 2004

JUDGMENT OF : Hodgson JA at 1 DECISION : Stay refused. Urgent final hearing ordered.

CATCHWORDS : PRACTICE - Appeal - Stay - Extreme financial detriment - Where stay would effectively reverse decision below - Whether expedited final hearing appropriate. AFG Talons Productions Pty. Ltd. - appellant PARTIES : Blue Mountains Conservation Society - 1st respondent Director-General National Parks & Wildlife - 2nd respondent Minister for Environment & Conservation - 3rd respondent FILE NUMBER(S) : CA 40351/04 Mr. N. Hemmings SC for appellant COUNSEL : Ms. L. Byrne for 1st respondent Mr. I. Harrison SC for 2nd & 3rd resondents SOLICITORS : Allens Arthur Robinson for appellants Other solicitors not on record.

LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT L&E40492/04 FILE NUMBER(S) : LOWER COURT Lloyd J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40351/04

HODGSON JA

Thursday 29 April 2004 AFG TALONS PRODUCTIONS PTY. LIMITED V. BLUE MOUNTAINS CONSERVATION SOCIETY INC. & ORS. Judgment 1 HODGSON JA: On 23 April 2004, the New South Wales National Parks and Wildlife Service issued a document purporting to be a consent pursuant to cl.20(1)(d) of the National Parks and Wildlife Regulation 2002 to permit certain filming to take place at Mount Hay. That document was issued to AFG Talons Production Proprietary Limited, and the document bears signatures on behalf of that entity dated 26 April 2004 by which the conditions of the consent were accepted. 2 The Blue Mountains Conservation Society Inc commenced proceedings in the Land and Environment Court seeking orders that would have the effect of preventing the filming from taking place; and those proceedings were heard on a final basis by Lloyd J in that Court on 28 April, and a decision was given by his Honour this morning, 29 April. His Honour in that decision held that the consent purportedly given was invalid and, I am told, made orders that would have the effect of preventing the filming taking place. 3 I note that the parties to the proceedings before the primary judge included the Director-General of National Parks and Wildlife and the Minister for Environment and Conservation, as well as the plaintiff that I have identified and AFG Talons. 4 AFG Talons proposes to appeal from that decision, and has made an urgent application before me for a stay of the orders made by the primary judge with a view to enabling the filming to take place this weekend. That application has the support of the Director-General of National Parks and Wildlife and the Minister for Environment and Conservation. 5 AFG Talons relies on evidence that was tendered below to the effect that, if the filming cannot take place this weekend, there will be very substantial monetary losses, and that if the filming cannot take place at all, it will have a very detrimental effect on the film that they are making, with further consequential losses. 6 The reasons for judgment of the primary judge are not available, but I am told that his decision is based on two broad matters of principle. Firstly, that the consent amounts to a licence within the meaning of s.153A of the National Parks and Wildlife Act and therefore is prohibited by that section. Secondly, that the activity of commercial filming of a feature film is for various reasons so repugnant to the nature of a wilderness area within a national park that the park authority does not have power to grant a consent for that kind of activity. 7 It cannot be said that either of those grounds is obviously incorrect, and in my opinion it would be wrong for me as a single judge, dealing on a superficial basis with an application for stay, to make an order that would in effect reverse the substantive impact of a final decision of the primary judge. 8 In my opinion the appropriate course to take is to attempt to arrange an urgent final hearing of the appeal within a time when a favourable result to the appeal, if it is achieved, would avoid extreme financial loss to the appellant. If this cannot be achieved, then I think it would be appropriate to attempt to assemble a Bench of three judges to consider the matter on an interlocutory basis. 9 I am told by Mr Hemmings that there would be extreme financial consequences for the appellant if the matter could not be determined by next Thursday, so what I will attempt to do is to arrange for a final hearing of the matter before next Thursday. I am told that the matter could be dealt with on a final basis within about half a day and this accords with my impression. On that basis, it seems to me that the nature of the case is such as to justify the extreme expedition that I have indicated, if the Court can make available a time for this to happen. 10 I note that the reasons for judgment of the primary judge are not yet available, and I strongly request the Court Reporting Service to make those reasons available as soon as possible. I will perhaps also request that my judgment be prepared as soon as possible.