Hoxton Park Residents Action Group v Liverpool City Council [2011] NSWCA 363: Freedom of Religion and Education

This is an appeal against the original judgment of April 2008 and the dismissal of proceedings on 12 November 2010. To access the full text of the case, please click here.

The applicants submitted four grounds on which the appeal was based:

• The Commonwealth cannot legislate to permit the funding of a religious institution for religious purposes

• Section 116 of the Constitution restrains State legislative power

• Liverpool City Council had no power as a consent authority in the development application

• There is also an action in tort for both nuisance and negligence

In its judgment, the New South Wales Court of Appeal refused leave to appeal for grounds 2 and 3 above.

However, their Honours granted leave to appeal for Grounds 1 and 4, citing the following arguments:

• In respect to Ground 1, "because the facts alleged in the pleadings differ from those underpinning existing authorities, there is a respectable argument that the essential propositions relied on by the applicants are not squarely decided by binding High Court authority. The New South Wales Court of Appeal referred to binding authority in the judgments of Attorney-General (Vic); Ex rel Black v The Commonwealth [1981] HCA 2; 146 CLR 559 and Australian Communist Party v The Commonwealth [1951] HCA 5; 83 CLR 1; as well as the more recent judgments of Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1 and Roach v Electoral Commissioner [2007] HCA 43; 233 CLR 162".

• In respect to Ground 4, "the possibility of pleading a legitimate claim in nuisance cannot be dismissed as the noxious activity on the land will affect various neighbours in different ways and a claim is dependent on the evidence presented." The New South Wales Court of Appeal relied upon the recent cases of Wheeler v JJ Saunders [1995] 2 All ER 697 and Hunter v Canary Wharf Ltd [1997] AC 655 at 669 referred to as well as other binding authority.

Two issues emerged from the discussion of their Honours in the text of the judgment. Firstly, the restrictive approach adopted in the early cases considering the prohibition on the free exercise of any religion is unlikely to be central to the applicants' case. Secondly, a critical factual issue is the scope and purpose of the grant of funding by the Commonwealth, through the State, for the purposes of the school. If it has such a clear religious purpose as the pleading suggests, it may fall outside the scope of the legislative scheme.

The decision revisits the question of freedom of religion in the Australian Constitution and its cross over with State and Federal government funding for education.

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