mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hanlon v Law Society [1981] AC 124 at 193
Outcome: followed
In my view this is one of the exceptional occasions where regulations can be used as an aid to the construction of an Act. The Act, in this case the Environment Act, "provides a framework built on contemporaneously prepared regulations": Hanlon v Law Society [1981] AC 124 at 193; Elazac Pty Ltd v Commissioner of Patents (1994) 125 ALR 663 at 667.
Case: Lion Laboratories Ltd v Evans and Others [1985] QB 526 at 553
Outcome: cited
In my view, however, this is a clear case for the application of the Oshlack approach. The condition of Port Phillip Bay is a matter of high public concern, and not only for the four million or so Victorians who live around it. As might be expected, the Project has attracted much controversy. On Saturdays the Melbourne Age publishes a list of which it considers to be the "Five Big Issues" of the week. Last Saturday, 12 January, Port Phillip Bay channel deepening was third, topped only by Andrew Symonds in the Sydney Test and Hillary Clinton in New Hampshire. Although, as has been said in another context, there is a difference between what is in the public interest and what is of interest to the public ( Lion Laboratories Ltd v Evans and Others [1985] QB 526 at 553), in the present case the two happen to coincide. There is a public interest in the Approval Decision itself, and equally in whether it has been reached according to law. Also, the application raised novel questions of general importance as to the approval process under the Environment Act: cf Save the Ridge Inc v Commonwealth (2006) 230 ALR 430 at [11]-[12] (acknowledging that the existence of a novel and important question of statutory construction will be relevant to a court's discretion in public interest litigation to depart from the ordinary costs rule, but concluding that the issues of construction presented in that case were not questions of general importance.)
Case: Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 ; (2004) 139 FCR 24
Outcome: cited
Accordingly, Blue Wedges submitted, the Assessment did not adequately assess all of the impacts of the Project. By making his decision on the basis of the Assessment and by failing to request additional information under s 132 of the Act, the Minister has failed to have regard to all considerations relevant to his decision under s 133 of the Act: see Minister for Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 ; (2004) 139 FCR 24. 64 Although s 87(4)(d) of the Environment Act envisages that the Assessment report should contain "enough" information to let the Minister make an "informed decision", the Act does not require that the report is the sole repository of information for the Minister to make such a decision. Indeed, s 132 (amongst other sections) assumes that the Minister may have other sources of information available on which to base a decision under s 133, and may need to utilise those sources even after the receipt of an Assessment report. 65 Section 132 of the Act provides: If the Minister believes on reasonable grounds that he or she does not have enough information to make an informed decision whether or not to approve for the purposes of a controlling provision the taking of an action, the Minister may request any of the following to provide specified information relevant to the making of the decision: (a) the person proposing to take the action; ... (e) any other person the Minister considers appropriate. (Emphasis added.)
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277
Outcome: cited
Thus, the power (which is expressed in discretionary, non-obligatory terms) to request information depends, not on an objective assessment of the sufficiency of the information before the Minister, but on the Minister's judgment (no doubt reasonably formed) as to whether he or she has enough information to make an informed decision. As to the difficulty of making out a legal challenge to decisions made under such powers, see Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119, and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277.
Case: Oshlack v Richmond City Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: applied
Costs are in the discretion of the Court: Federal Court of Australia Act 1976 (Cth) s 43. In considering the award of costs under a similarly broad statutory discretion in Oshlack v Richmond City Council [1998] HCA 11 ; (1998) 193 CLR 72, a majority of the High Court held that the trial judge's discretion had not miscarried by taking into account such matters as the unsuccessful party's motivation to ensure obedience to environmental law and preservation of an endangered koala habitat, the fact that a significant number of members of the public shared that view, and that the basis of the challenge was arguable: see per Gaudron and Gummow JJ at [20],[49] and per Kirby J at [133], [136]-[144]; see also Save the Ridge Inc v Commonwealth (2006) 230 ALR 411 (discussing departures from the ordinary costs rule in public interest cases). 73 In my view, however, this is a clear case for the application of the Oshlack approach. The condition of Port Phillip Bay is a matter of high public concern, and not only for the four million or so Victorians who live around it. As might be expected, the Project has attracted much controversy. On Saturdays the Melbourne Age publishes a list of which it considers to be the "Five Big Issues" of the week. Last Saturday, 12 January, Port Phillip Bay channel deepening was third, topped only by Andrew Symonds in the Sydney Test and Hillary Clinton in New Hampshire. Although, as has been said in another context, there is a difference between what is in the public interest and what is of interest to the public ( Lion Laboratories Ltd v Evans and Others [1985] QB 526 at 553), in the present case the two happen to coincide. There is a public interest in the Approval Decision itself, and equally in whether it has been reached according to law. Also, the application raised novel questions of general importance as to the approval process under the Environment Act: cf Save the Ridge Inc v Commonwealth (2006) 230 ALR 430 at [11]-[12] (acknowledging that the existence of a novel and important question of statutory construction will be relevant to a court's discretion in public interest litigation to depart from the ordinary costs rule, but concluding that the issues of construction presented in that case were not questions of general importance.)
Case: Save the Ridge Inc v Commonwealth (2006) 230 ALR 441
Outcome: cited
Costs are in the discretion of the Court: Federal Court of Australia Act 1976 (Cth) s 43. In considering the award of costs under a similarly broad statutory discretion in Oshlack v Richmond City Council [1998] HCA 11 ; (1998) 193 CLR 72, a majority of the High Court held that the trial judge's discretion had not miscarried by taking into account such matters as the unsuccessful party's motivation to ensure obedience to environmental law and preservation of an endangered koala habitat, the fact that a significant number of members of the public shared that view, and that the basis of the challenge was arguable: see per Gaudron and Gummow JJ at [20],[49] and per Kirby J at [133], [136]-[144]; see also Save the Ridge Inc v Commonwealth (2006) 230 ALR 411 (discussing departures from the ordinary costs rule in public interest cases). 73 In my view, however, this is a clear case for the application of the Oshlack approach. The condition of Port Phillip Bay is a matter of high public concern, and not only for the four million or so Victorians who live around it. As might be expected, the Project has attracted much controversy. On Saturdays the Melbourne Age publishes a list of which it considers to be the "Five Big Issues" of the week. Last Saturday, 12 January, Port Phillip Bay channel deepening was third, topped only by Andrew Symonds in the Sydney Test and Hillary Clinton in New Hampshire. Although, as has been said in another context, there is a difference between what is in the public interest and what is of interest to the public ( Lion Laboratories Ltd v Evans and Others [1985] QB 526 at 553), in the present case the two happen to coincide. There is a public interest in the Approval Decision itself, and equally in whether it has been reached according to law. Also, the application raised novel questions of general importance as to the approval process under the Environment Act: cf Save the Ridge Inc v Commonwealth (2006) 230 ALR 430 at [11]-[12] (acknowledging that the existence of a novel and important question of statutory construction will be relevant to a court's discretion in public interest litigation to depart from the ordinary costs rule, but concluding that the issues of construction presented in that case were not questions of general importance.)
Case: Attorney-General for the State of New South Wales v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: applied
Judicial review of administrative action based on the Wednesbury unreasonable ground must be exercised with considerable restraint, otherwise there will be a blurring between what is judicial review and what is merits review of a decision with which a court disagrees. As Brennan J said in Attorney-General for the State of New South Wales v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 37: The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious. 162 I am unable to form the view that, on the entirety of the evidence, the Minister's 2007 assessment approach decision was so unreasonable that no reasonable Minister would have made it. 163 As none of the grounds in TWS's third amended application have been made out, the application must be dismissed. I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 9 August 2007 Counsel for the Applicant: Ms D Mortimer SC with Mr R Niall Solicitors for the Applicant: FitzGerald and Browne Lawyers Counsel for the First Respondent: Dr M Perry QC with Mr G Hill Solicitors for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Mr G Uren QC with Mr T Walker Solicitors for the Second Respondent: Freehills Dates of Hearing: 4-6, 9-10 July 2007 Date of Judgment: 9 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1178.html
Case: Brooks v The Upjohn Company (1998) 85 FCR 469
Outcome: cited
Counsel for TWS submit that the Minister's 2007 assessment approach decision was affected by apprehended bias. They contend that the facts and circumstances of this matter are such as would give rise in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the Minister's part, and to an apprehension that the Minister prejudged the outcome of the decision he was required to make (see Webb v R [1994] HCA 30 ; (1994) 181 CLR 41 at 47 per Mason CJ and McHugh J and Brooks v The Upjohn Company (1998) 85 FCR 469 at 477).
Case: Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438
Outcome: applied
However, that disappointment, anger and suspicion must be seen in the context of these facts: &#8226; it was Departmental practice to assist proponents with referrals and to meet to discuss them; &#8226; the planning for assessment on preliminary documentation was based on Mr Early's judgment that it was the correct approach; &#8226; although timelines were discussed between Gunns and the Department and in some of the material recording these discussions the language of "agreement" is used, I accept Mr Early's evidence that there was no guarantee that the process would be concluded by any particular time, because "the clock" might stop for some reason; &#8226; although the Australian Government had partly funded the proposal and supported it politically, it must be borne in mind that in making the decision on approval under s 133 of the EPBC Act, the Minister must consider "economic and social matters" under s 136(1)(b). As long as the steps required by the EPBC Act are taken by the Minister, the Australian Government is not prevented from having a policy position on the pulp mill project (see Hot Holdings Pty Limited v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 at [50] ). 148 The critical issue is whether a well-informed reasonable observer would consider there was an apprehension of bias in the Minister. The Minister received strong advice from Mr Early, who firmly believed in the preliminary documentation assessment approach. Gunns lobbied him in favour of that approach. That approach also suited the Tasmanian Government and enhanced the chances of synchronisation of approval under the EPBC Act with approval by the Tasmanian Parliament. By 2 April 2007, the Minister wanted to know if an approval timeline ending in August 2007 was possible because he knew that was what the Tasmanian Government and Gunns were pursuing. However, the Minister did not consider the preliminary documentation assessment approach to the exclusion of all other approaches. Even during the course of making the assessment approach decision, the Minister questioned Mr Early about why another approach was not being recommended. At the time of making his decision, I do not consider that a well-informed observer could reasonably form the view that the Minister was biased towards the preliminary documentation assessment approach to the extent that he was not prepared to even consider alternative approaches, because he plainly did. 149 The allegation that the 2007 assessment approach decision is invalid due to apprehended bias is rejected.
Case: Industrial Equity Limited v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649
Outcome: referred to
As Gaudron J said in Industrial Equity Limited v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 672: An improper purpose will not lightly be inferred and, by application of a presumption of regularity, will only be inferred if the evidence cannot be reconciled with the proper exercise of the power: see Reg. v Inland Revenue Commissioners; Ex parte Rossminster , per Lord Diplock. 157 In this proceeding, the evidence can be reconciled with the proper exercise of power having regard to the Minister's reasons for the 2007 assessment approach decision and the prevailing factual background referred to in the preceding paragraphs of these reasons for judgment relating to improper exercise of power. 158 The final ground to be considered in TWS's application is the allegation that the 2007 assessment approach decision was manifestly unreasonable. This is the least arguable ground raised in the third amended application.
Case: Minister for Immigration and Multicultural Affairs; Ex parte Eshetu [1999] HCA 21 ; (1999) 197 CLR 611
Outcome: applied
As Gleeson CJ and McHugh J said in Minister for Immigration and Multicultural Affairs; Ex parte Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [40] : Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence. Further at [44], their Honours said: As Mason J pointed out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd... , when the ground of asserted unreasonableness is giving too much or too little weight to one consideration or another "a court should proceed with caution...lest it exceed its supervisory role by reviewing the decision on its merits".
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: applied
The Minister considered that the second referral had been withdrawn on 28 March 2007, presumably as a consequence of Mr Gay's letter of that date referred to at [56]. On my analysis, the withdrawal occurred late on 30 March 2007 in the making of the third referral. This means that the notice under reg 6B.01 was premature and referred to an incorrect date of withdrawal. However, this does not affect the validity of the withdrawal, it means that the obligation to publish notice of the withdrawal in accordance with s 170C(3) and the EPBC Regulations remains unfulfilled. The notice itself has been given and the failure to publish that notice is not intended to affect the validity of the withdrawal of the second referral (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [91] [97] (especially at [92]) per McHugh, Gummow, Kirby and Hayne JJ). There is no indication in s 170C that failure to publish notice of the withdrawal in strict compliance with the EPBC Regulations results in the invalidity of the withdrawal. 78 Counsel for TWS contend that on withdrawal of the second referral, the provisions of Ch 4 of the EPBC Act, including ss 68, 75 and 87 ceased to apply to the action. Counsel submit that, as a consequence, the third referral was invalid and not capable of supporting the impugned decisions. 79 Reliance is placed on s 170C(4) which provides : If the referral is withdrawn, the provisions of this Chapter [ss 66 to 170C] that would, apart from this subsection, have applied to the action cease to apply to the action.
Case: R v Isaac; Ex parte Transport Workers' Union of Australia [1985] HCA 80 ; (1985) 159 CLR 323
Outcome: referred to
Any obligation to the public or persons interested in an action in the context of those decisions is found in the EPBC Act. There is no general obligation to accord procedural fairness. The words "in relation to" in s 131AA(7) are broad. Compare the similar expression "in connection with" which Gibbs CJ held in the context of an eligibility rule of a registered industrial organisation "very considerably widens the scope of the rule" ( R v Isaac; Ex parte Transport Workers' Union of Australia [1985] HCA 80 ; (1985) 159 CLR 323 at 335). 140 Even if I am wrong in considering that there is no obligation to accord procedural fairness, otherwise than as is set out in the EPBC Act, it would be difficult to establish a denial of procedural fairness in the circumstances. As counsel for the Minister submit, in their written submissions: ...the scope of the inquiry under the EPBC Act is limited to issues relevant to the "controlling provisions"...the inquiry will not consider any and all environmental issues that may arise out of the proposal. For example, issues of general air quality are not relevant. The relatively confined scope of the inquiry bears on the reasonableness of the opportunity to be heard. 141 It is also significant, as counsel for the Minister submit at [36] of their written submissions, that there is no requirement in the EPBC Act to invite the public to comment on what assessment approach should be adopted for the decision on approval. That tells against a requirement for the Minister to accord procedural fairness in making an assessment approach decision.
Case: Re MacTiernan, Ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264
Outcome: referred to
In any event, I am not satisfied that, even if Gunns' commercial imperatives influenced the Minister's 2007 assessment approach decision, that this was a dominant or substantial purpose in the Minister's choice of assessment process (see Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 397 per Merkel J citing Thompson v The Council of the Municipality of Randwick Corporation [1950] HCA 33 ; (1950) 81 CLR 87 at 106). Nor am I satisfied that it was the "operative subjective purpose of the decision maker" (see Re MacTiernan, Ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264 at [51] per McLure J).
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Outcome: referred to
The 2007 assessment approach decision cannot be said to be "irrational, illogical and not based upon findings or inferences of fact supported by logical grounds" (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34], per McHugh and Gummow JJ). The 2007 assessment approach decision was made after the Minister considered an alternative approach, such as an EIS. In all the circumstances, having regard to the advice given to the Minister by Mr Early, and taking into account the demise of the RPDC process, it cannot be said that the 2007 assessment approach decision was manifestly unreasonable.
Case: Thompson v The Council of the Municipality of Randwick Corporation [1950] HCA 33 ; (1950) 81 CLR 87
Outcome: cited
In any event, I am not satisfied that, even if Gunns' commercial imperatives influenced the Minister's 2007 assessment approach decision, that this was a dominant or substantial purpose in the Minister's choice of assessment process (see Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 397 per Merkel J citing Thompson v The Council of the Municipality of Randwick Corporation [1950] HCA 33 ; (1950) 81 CLR 87 at 106). Nor am I satisfied that it was the "operative subjective purpose of the decision maker" (see Re MacTiernan, Ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264 at [51] per McLure J).
Case: Webb v R [1994] HCA 30 ; (1994) 181 CLR 41
Outcome: cited
Counsel for TWS submit that the Minister's 2007 assessment approach decision was affected by apprehended bias. They contend that the facts and circumstances of this matter are such as would give rise in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the Minister's part, and to an apprehension that the Minister prejudged the outcome of the decision he was required to make (see Webb v R [1994] HCA 30 ; (1994) 181 CLR 41 at 47 per Mason CJ and McHugh J and Brooks v The Upjohn Company (1998) 85 FCR 469 at 477).
Case: Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386
Outcome: referred to
In any event, I am not satisfied that, even if Gunns' commercial imperatives influenced the Minister's 2007 assessment approach decision, that this was a dominant or substantial purpose in the Minister's choice of assessment process (see Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 397 per Merkel J citing Thompson v The Council of the Municipality of Randwick Corporation [1950] HCA 33 ; (1950) 81 CLR 87 at 106). Nor am I satisfied that it was the "operative subjective purpose of the decision maker" (see Re MacTiernan, Ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264 at [51] per McLure J).