Case: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Outcome: followed
is important to recognise that at this stage of both proceedings, as I am dealing with applications for interlocutory relief, I do not have to make any final determination in respect of the issues raised before the Court. Consistently with established authority I am required to determine whether there is a serious question to be tried in relation to the causes of action raised by the applicants in each proceeding. If I am so satisfied and am satisfied that the applicants will suffer irreparable harm in respect of which damages are not an adequate remedy if an injunction is not granted, it is then necessary to determine whether the balance of convenience favours the grant or refusal of the injunctive relief sought. I am therefore following and applying the process identified by Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153: "In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction." Consideration of the first proceeding In relation to the first proceeding the applicants submitted that a breach of the rules of natural justice has occurred or is occurring or is likely to occur in connection with the proposal of the Minister to give the notice pursuant to s 47(1) of the NER Act. The tenants of the Housing Associations will be significantly affected by the proposed decision so that the Minister is obliged to observe the principles of natural justice or procedural fairness and ensure that the tenants are made aware of the manner in which their rights will be affected by the notice and are given an opportunity to make submissions to the Minister as to whether or not she should give a notice before she finally makes a decision. The applicants submitted that the power conferred on the Minister by s 47 of the NER Act to issue a notice which had the effect of vesting all rights and interests in the land to which the notice related with the Commonwealth (see s 47(3)), was subject to a duty imposed upon the Minister to accord procedural fairness or natural justice to the applicants. It was submitted that that duty had not been observed in the present circumstances as the tenants had not been made fully aware of the consequence of the notice on their rights to occupy the land which they sub-leased from the Housing Associations and that they had not been given an opportunity to make submissions to the Minister in respect of her proposal to give such a notice. The Minister submitted that the power given to the Minister pursuant to s 47 was not constrained by any obligation to accord natural justice or procedural fairness to the tenants whose rights would be affected, indeed extinguished, by the giving of a notice pursuant to s 47. The Minister acknowledged that generally one would expect that a power of the kind contained in s 47 would be subject to a duty to accord procedural fairness and that the Commonwealth's power to acquire land by compulsion contained in the Lands Acquisition Act 1989 (Cth) (" Lands Acquisition Act ") was generally subject to an obligation to notify affected parties. The Minister then submitted that the NER Act was enacted with a view to a need to respond urgently to a national emergency and that s 47 was enacted as a separate power and that the usual procedural provisions in the Lands Acquisition Act were expressly put aside in relation to acquisitions under s 47. In this context the Minister referred to s 50(2) of the NER Act. The Minister submitted that s 50(1) and (2) of the NER Act excluded written and unwritten natural justice obligations. The Minister submitted that s 50(1) was an unambiguous statement that the s 47 power was not constrained, even by an unwritten law that might otherwise support an implication for a natural justice obligation. The Minister submitted that it was plain that the legislative expressly turned its mind to, and excluded, procedural fairness that was expressed in written law. I consider that there is a serious question to be tried that this is not the proper construction and effect of s 50. Put another way, I consider there is a serious question to be tried that the provisions of s 47 of the NER Act taken with the provisions of s 50 do not oust the obligation cast upon the Minister to accord natural justice or procedural fairness to the tenants who will be affected by the proposed notice. I consider it is arguable that s 50 is concerned with laws whether written or unwritten which are inconsistent with the provisions of Div 1 and Div 2 of the Act. I consider that it is clearly arguable that the principles of natural justice or procedural fairness are not inconsistent with the exercise of power to give a notice under s 47. As the applicants submitted, it is arguable that natural justice is an adjunct to the exercise of that power.