Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363 Hearing dates: 13 July 2011 Decision date: 25 November 2011 Before: Allsop P at 1; Beazley JA at 2; Basten JA at 3 Decision: (1) To the extent necessary extend time to file the amended summons seeking leave to appeal up to and including 21 March 2011. (2) Grant leave to appeal from the orders made by the Court on 12 November 2010 (and the orders for costs in connection therewith) on grounds limited to the challenges to the Constitutional validity of the Commonwealth legislation providing for funding of the Australian Federation of Islamic Councils Inc and the Malek Fahd Islamic School Ltd and the claims in nuisance and negligence. (3) Otherwise refuse leave to appeal from the orders made by the Court on 12 November. (4) Allow the appeal. (5) Set aside the orders made by the Court on 12 November 2010 insofar as they dismissed claims alleging the Constitutional invalidity of the Commonwealth legislation providing for the funding of the Federation and the School and insofar as they dismissed claims in nuisance and negligence without liberty to replead such claims. (6) Set aside the costs order made in the Equity Division. (7) Remit the matter to the Equity Division for orders for the further conduct of the proceedings consistent with the reasons of this Court and with respect to the costs of the proceedings in that Court. (8) Order that the State and the Commonwealth pay 50 per cent of the costs of the applicants/appellants in this Court and the Federation and the School pay 20 per cent of the costs of the applicants/appellants in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONSTITUTIONAL LAW - religion - validity of Commonwealth legislation providing for funding of schools - funding provided for religious purposes - Constitution s 116