Apache Northwest Pty Ltd v Agostini - [2009] WASCA 147

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: APACHE NORTHWEST PTY LTD -v- AGOSTINI [2009] WASCA 147

CORAM: BUSS JA

HEARD: 17 AUGUST 2009

DELIVERED : 17 AUGUST 2009

FILE NO/S: CACV 96 of 2009

BETWEEN: APACHE NORTHWEST PTY LTD (ABN 58 009 140 854)
APACHE ENERGY LTD (ABN 39 009 301 964)
Appellants
AND
DAVID AGOSTINI
KYM BILLS
First Respondents
THE STATE OF WESTERN AUSTRALIA
Second Respondent
MINISTER FOR MINES AND PETROLEUM FOR WESTERN AUSTRALIA
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BEECH J
Citation  :APACHE NORTHWEST PTY LTD -v- AGOSTINI [2009] WASC 225
File No  :CIV 2154 of 2009

Catchwords:

Practice and procedure - Application for injunction pending appeal - Interaction of the requirement that the applicant have reasonable prospects of success with the balance of convenience - Application granted - Turns on own facts

Legislation:

Nil

Result:

Application for injunction pending appeal granted

Category: B

Representation:

Counsel:

Appellants:     Mr B D Luscombe
First Respondents         :     Mr R M Mitchell SC & Ms L J Dias
Second Respondent      :     Mr R M Mitchell SC & Ms L J Dias
Third Respondent          :     Mr R M Mitchell SC & Ms L J Dias

Solicitors:

Appellants:     Mallesons Stephen Jaques
First Respondents         :     State Solicitor for Western Australia
Second Respondent      :     State Solicitor for Western Australia
Third Respondent          :     State Solicitor for Western Australia

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

Apache Northwest Pty Ltd v Agostini [2009] WASC 225
Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd [1988] HCA 53; (1988) 165 CLR 452

BUSS JA: In Supreme Court action CIV 2154 of 2009, the appellants sought declarations and injunctions restraining the first and second respondents from providing to the third respondent a report described as the Varanus Island Final Investigation Report (Investigation Report).
The appellants claimed that the first and second respondents, in preparing and finalising the Investigation Report, breached a duty to afford procedural fairness to them. Alternatively, the appellants sought an injunction restraining the third respondent from publishing the Investigation Report or its contents.
The Supreme Court action was tried before Beech J. The main issues at the trial were:
(a)whether the preparation and provision of the Investigation Report to the third respondent attracted a duty of procedural fairness; and
(b)if so, whether the first respondents breached the duty in the manner asserted by the appellants.
The respondents oppose the application.
The learned primary judge delivered judgment and published his reasons on 14 August 2009. See Apache Northwest Pty Ltd v Agostini [2009] WASC 225. He determined both of the main issues adversely to the appellants.
The learned primary judge summarised his conclusions on the main issues, as follows:
(1)There was no duty of procedural fairness on the first defendants or the State in the preparation and provision to the Minister of the Investigation Report. That is because that conduct, in itself, does not sufficiently affect any rights or interests of the Apache companies.
(2)Any decision by the Minister to publish the Investigation Report would attract a duty of procedural fairness to the Apache companies.
(3)Any decision by the Minister in relation to any oil and gas interests or potential interests of the Apache companies to which the Adverse Contents of the Investigation Report are relevant would attract a duty of procedural fairness.
(4)The Apache companies have not established the pleaded breach of the requirements of procedural fairness, namely, that they were not given an opportunity to comment on the Adverse Contents of the Investigation Report [172].
Conclusions (1) and (4) resulted in his Honour refusing the appellants' primary claims for declaratory and injunctive relief in accordance with pars A, B and C of their prayer for relief in the statement of claim. Conclusion (4) resulted in his Honour refusing the injunctive relief sought against the third respondent in par D of their prayer.
On 14 August 2009, the learned primary judge ordered that:
(a)the action be dismissed and there be judgment entered for the respondents; and
(b)the appellants pay the respondents' costs to be taxed, if not agreed.
On 14 August 2009, after the learned primary judge delivered judgment, the first and second respondents extended until 4.00 pm today an undertaking they originally gave to the Supreme Court, on 25 June 2009, not to provide the Investigation Report to the third respondent.
On 14 August 2009, the appellants filed an appeal notice against the learned primary judge's decision. Also, on that date, the appellants filed an application in the appeal for, relevantly:
(a)an injunction restraining the first and second respondents, until the determination of the appeal or further order, from, relevantly, providing to the third respondent the findings or other materials which adversely affect the appellants' interests and are contained in the Investigation Report; and
(b)an urgent appeal order.
The exercise of this court's discretion to grant an injunction pending the determination of an appeal requires an assessment to be made of the decision under appeal and also the balance of convenience, including whether refusal of the injunction would render the appeal nugatory. See Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd [1988] HCA 53; (1988) 165 CLR 452, 460. The nature of the criteria which are ordinarily relevant to the exercise of this court's discretion to grant an injunction, pending an appeal, are analogous to those which are relevant to the grant of a stay. Although it is ordinarily necessary to establish that the appellants have reasonable prospects of success on the appeal, the appellants' prospects are, to some extent, interdependent with the balance of convenience.
I have read the learned primary judge's reasons for decision, the appeal notice, the application in the appeal, an affidavit of Patricia Saraceni sworn 14 August 2009 in support of the application and the appellants' written submissions. No draft grounds of appeal have been filed, but the substance of at least some of the proposed grounds are outlined in the appellants' written submissions. I have also had the benefit of cogent oral submissions from senior counsel for the first and second respondents.
In my opinion, an interlocutory injunction should be granted, substantially in the terms sought by the appellants, until 4.00 pm on 10 September 2009 or further order, if the first and second respondents are unwilling voluntarily to extend their undertaking until that time or further order. My reasons are as follows.
First, I consider that, on my reading of the learned primary judge's reasons, the appellants have sufficient prospects of success to justify the grant of an injunction on a short-term basis pending the hearing of the appeal. There appears to be at least a reasonably arguable case on two points. One is whether the provision of the Investigation Report to the third respondent, without further publication, affects the reputation of the appellants in a way that attracts the requirements of procedural fairness [125]. That is, does the preparation and provision to the third respondent of the Investigation Report (including the contents of the Investigation Report which are adverse to the appellants) attract a duty of procedural fairness before the third respondent proposes to publish the report or before the third respondent proposes to make a decision affecting the appellants' oil and gas interests (or potential interests) where the adverse contents are relevant and significant [143]. The other point is whether if, contrary to the learned primary judge's view, the preparation and provision to the third respondent of the Investigation Report (including the adverse contents) did attract a duty of procedural fairness immediately, whether, on the evidence before his Honour, the failure to disclose, and to permit submissions on, the adverse contents amounted to a breach of the requirements of procedural fairness [166].
Secondly, the interlocutory relief sought by the appellants, as amended by their counsel in the course of oral submissions, does not appear to be more than is necessary to preserve the availability of the relief sought in their prayer for relief in the statement of claim.
Thirdly, although senior counsel for the first and second respondents argued that the public interest may be adversely affected if an injunction were to be granted, I am not persuaded that there is likely to be any material adverse effect on the public interest if an injunction were to be granted, substantially in the terms sought by the appellants, until 4.00 pm on 10 September 2009 or further order. If events occur which alter the current balance of convenience, the first and second respondents may apply for the injunction to be varied or discharged.
Fourthly, I have decided that an urgent appeal order is appropriate and I will order that the appeal be heard on 10 September 2009. The first and second respondents have previously given voluntary undertakings to the court in respect of the period between 25 June 2009 and 4.00 pm today, in similar terms to the injunction now sought by the appellants.
Fifthly, if the injunction is not granted, the appeal will not be rendered nugatory but, significantly, the relief claimed by the appellants in pars C and D of their prayer for relief in the statement of claim will become moot.
I will hear from counsel as to the precise form of the orders necessary to give effect to these reasons.