FEDERAL COURT OF AUSTRALIA

The Village Building Co Limited v Airservices Australia [2007] FCA 1547

The Village Building Co Limited v Airservices Australia [2007] FCA 1242 related

THE VILLAGE BUILDING CO LIMITED ACN 056 509 025 v AIRSERVICES AUSTRALIA and CANBERRA INTERNATIONAL AIRPORT PTY LTD ACN 080 361 548

ACD 37 OF 2007

GYLES J

2 OCTOBER 2007

CANBERRA

THE COURT:

Upon the appellant by its counsel giving the usual undertaking as to damages and undertaking that, pending the hearing of the appeal, the appellant will take no further steps to advance the rezoning of Tralee based on the current Australian Noise Exposure Forecast (ANEF):

1.                  Orders that the first respondent by itself, its servants and agents be restrained until 5.00 pm on Friday 2 November 2007 or further order from endorsing any new draft ANEF for Canberra International Airport.

2.                  Adjourns the motion for a stay to the commencement of the appeal.

3.                  Orders that costs are reserved.

4.                  Grants liberty to apply to all parties.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The Village Building Co Limited has filed a notice of appeal against the judgment of Rares J in The Village Building Co Limited v Airservices Australia [2007] FCA 1242.  The appeal has been tentatively fixed for the week of 29 October next.  Village Building submits that, in essence, the judgment below should be stayed by the grant of an injunction to restrain endorsement by Airservices Australia of a statutory instrument being a draft Australian Noise Exposure Forecast (ANEF) pending the hearing of the appeal.  As the hearing is only a short time away, there is much to be said for the view that the status quo should be maintained, at least until the appeal is heard.

2                     On the other hand, there is a statutory process being interrupted and counsel for Canberra International Airport, a respondent to the appeal, submits that there is no irreparable harm caused if there is no injunction and the ANEF is endorsed because that merely triggers other events.  If there is a successful attack on the endorsement, that success will carry through to the next stage.  Put another way, it is the contention of Canberra International Airport that the matter take its course, even though, if ultimately Village Building is successful, that may mean that time and money have been expended on a statutory course of action which is rendered nugatory.  I asked counsel for Village Building what irreparable harm is done if the endorsement is found to be contrary to law given the most likely result is that it will be set aside and it will be as if it had never occurred.  Counsel put that once a statutory step of that sort is taken, it is difficult to be quite clear as to what consequences it might have.

3                     The matter is quite evenly balanced.  At the end of the day I am disposed to grant the injunction, mainly because of the very short time involved between now and the hearing of the appeal.  I appreciate that while hearing an appeal is one thing, getting a judgment is another.  However, if the injunction is limited in time, the continuation of the injunction will be a matter for the Full Court.  That is appropriate.  I am exercising appellate jurisdiction as a single judge and that has its limitations.  By the end of the appeal, which should be completed in a day, the members of the Full Court will be very well versed with the statutory consequences so that they will be well placed to give consideration to whether it is appropriate to extend the injunction.  It goes without saying that what I have had to say today will be of little relevance to that Court when it considers the matter in the light of the arguments it will have heard by then. 

Associate:

Dated:         8 October 2007