Akwa Pty Ltd v Caltex Australia Petroleum Pty Ltd

[2017] WASCA 217

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   AKWA PTY LTD -v- CALTEX AUSTRALIA PETROLEUM PTY LTD [2017] WASCA 217

CORAM:   MARTIN CJ

MURPHY JA
CHANEY J

HEARD:   3 NOVEMBER 2017

DELIVERED          :   3 NOVEMBER 2017

PUBLISHED           :  22 NOVEMBER 2017

FILE NO/S:   CACV 15 of 2017

BETWEEN:   AKWA PTY LTD

Appellant

AND

CALTEX AUSTRALIA PETROLEUM PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MARTINO J

Citation  :AKWA PTY LTD -v- CALTEX AUSTRALIA PETROLEUM PTY LTD [2017] WASC 16

File No  :CIV 1025 of 2016

Catchwords:

Interlocutory appeal from decision refusing trial of preliminary issues - Turns on own facts

Legislation:

Contaminated Sites Act 2003 (WA)

Result:

Application to adduce further evidence allowed in part
Application for leave to appeal dismissed
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr N Dillon

Respondent:     Mr D H Solomon

Solicitors:

Appellant:     Morgan Alteruthemeyer Legal Group

Respondent:     Solomon Brothers

Case(s) referred to in judgment(s):

Nil

1. MARTIN CJ:  (This judgment was delivered extemporaneously on 3 November 2017 and has been edited from the transcript.)

2. This is an application for leave to appeal from an interlocutory decision refusing an application for a trial of preliminary issues.  Before I turn to the application for leave to appeal, there is an application before the court to adduce further evidence in the form of two affidavits from solicitors for the appellant, one sworn 26 October 2017 and the other sworn 2 November 2017.  The affidavits cover a range of materials and so it is appropriate to deal with the different portions of the material which is sought to be tendered through the affidavits. 

3. First, I will address the material tendered through par 3 of the affidavit of 2 November 2017 which attaches a true copy of a letter from the Contamination Sites Committee, dated 10 July 2017.  This letter is not said to be directly relevant to the matter before the court, which is an application for leave to appeal from an interlocutory decision of the judge at first instance, but is tendered for the purpose of ensuring that the court is not misinformed as to the current state of the land in question when determining that application. 

4. The letter provides evidence of what happened since the judge's decision and does have the effect of preventing the court from being misled, although, as I said, it is not tendered on the basis that it is relevant to the critical question the court has to decide, which is whether the judge erred.  I would receive that paragraph of the affidavit and the annexed letter on the limited basis upon which it is tendered. 

5. The other material which is sought to be tendered through the affidavits can be grouped into two categories.  The first category relates to an estimate of the costs that would be saved, it is said, if a preliminary issue is determined, as was sought before the judge at first instance.  It is said that the material would assist the court in assessing whether or not this appeal should be allowed. 

6. In my view, there is no reason why that material could not and should not have been put before the judge at first instance, and there is no reason why this court should allow the appellant to place before this court, in support of an application for leave to appeal, material that could and should have been placed before the judge.  I would reject the tender of that portion of the evidence. 

7. The second category of material that is said to be relevant concerns correspondence which has taken place since the decision of the judge in which it is said that the appellant has offered to confer in relation to the identification of the facts and matters which it submits the respondent is estopped from denying.  However, notwithstanding the content of that material, the appellant submits that there is no need for those facts and matters to be determined. It follows, in my view, that that evidence is utterly irrelevant to the case which is being presented in this appeal and I would reject it on that basis. 

8. For these reasons I would receive par 3 of the affidavit of 2 November 2017 and the letter referred to in that paragraph, but I would reject the tender of the other material.

9. I now turn to the application for leave to appeal from the decision of the judge at first instance refusing an application for the trial of preliminary issues.  Because the decision was interlocutory in character it is well established that leave to appeal from such a decision will only be granted very sparingly and in exceptional circumstances.  The reasons for that approach are enunciated in the prior decisions of this court and it is unnecessary to repeat them in these reasons.

10. The application before the judge was an application for the trial of preliminary issues.  The issues that the appellant sought to have determined on a preliminary basis were, first, the question of whether, and I quote from the application:

    … the parties [are] estopped from challenging the classification [of land by the Contaminated Sites Committee] or any facts or matters upon which that classification was founded?

11. The second issue that was sought to be determined was whether the parties are estopped from challenging a decision made pursuant to s 39 of the Contaminated Sites Act 2003 (WA) and any facts or matters upon which that decision was founded.

12. Assuming for the sake of argument, and without being taken to decide, that decisions of the Contaminated Sites Committee under the Contaminated Sites Act could give rise to an estoppel notwithstanding the provisions of s 9(4) of that Act, there are a number of reasons why the judge at first instance was plainly correct to refuse the application. 

13. The first matter that the appellant says the respondent is estopped from denying concerns the classification of the land.  That is not, in itself, a material fact relevant to the resolution of the issues in these proceedings.  The fact that the land was classified was an administrative step taken by the Committee. 

14. The next matter that Caltex is said to be estopped from denying are the facts or matters upon which that classification was founded.  The problem the judge at first instance faced was that those facts or matters had not been identified.  That problem persists in the appeal before this court.  The appellant has not identified the matters it is said gave rise to that classification.

15. It is also said that the parties are estopped from challenging the decision contained in the s 39 notice. There is no challenge to that decision in these proceedings. The proceedings that are before the court below concern claims for damages pursuant to lease agreements. There is no occasion for the decision contained in the s 39 notice to be challenged. Again, it is said that the respondent is estopped from denying the factual matters upon which that decision was founded. No attempt was made either before the judge at first instance or before this court to identify the facts or matters that are said to be the subject of the estoppel. The judge at first instance refused the application because those facts and matters had not been identified and his Honour was plainly correct to do so.

16. There is no reason to conclude that the decision of the judge at first instance was attended by any error.  This is not one of those exceptional cases in which leave to appeal for an interlocutory decision of the court should be granted.

17. MURPHY JA:   I agree with the Chief Justice.  I would add two observations.   First, the decision to classify the land was made by the chief executive officer, but for the reasons the Chief Justice has given, there is no material difference in the reasoning that applies to the outcome of that process. 

18. I would also add that the provisions of the Contaminated Sites Act 2003 would need to be construed as a whole and my agreement with the Chief Justice's judgment is not to be taken as any indication that, on a proper construction of the Act as a whole, the Act has the effect of generating estoppels of the kind contended for by the appellants. 

19. CHANEY J:   I agree with the reasons given by the Chief Justice and the observations made by Justice Murphy.