Apache Northwest Pty Ltd v Agostini

Case [2009] WASC 225

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   APACHE NORTHWEST PTY LTD -v- AGOSTINI [2009] WASC 225

CORAM:   BEECH J

HEARD:   30 JULY 2009

DELIVERED          :   14 AUGUST 2009

FILE NO/S:   CIV 2154 of 2009

BETWEEN:   APACHE NORTHWEST PTY LTD (ABN 58 009 140 854)

APACHE ENERGY LTD (ABN 39 009 301 964)
Plaintiffs

AND

DAVID AGOSTINI
KYM BILLS
First Defendants

STATE OF WESTERN AUSTRALIA
Second Defendant

MINISTER FOR MINES AND PETROLEUM FOR WESTERN AUSTRALIA
Third Defendant

Catchwords:

Administrative law - Natural justice - Procedural fairness - Minister announced non-statutory investigation - Whether preparation of report and provision to Minister attracted duty of procedural fairness - Whether publication of report would attract duty of procedural fairness - Whether a report may affect plaintiffs' reputation - Whether effect on reputation attracts duty of procedural fairness in context of exercise of non-statutory public power - Whether duty breached by failure to give opportunity to comment on adverse contents of report

Legislation:

Nil

Result:

Application for declarations and injunctions dismissed

Category:    A

Representation:

Counsel:

Plaintiffs:     Mr A Robertson SC & Mr B D Luscombe

First Defendants            :     Mr R M Mitchell SC & Ms L J Dias

Second Defendant         :     Mr R M Mitchell SC & Ms L J Dias

Third Defendant            :     Mr R M Mitchell SC & Ms L J Dias

Solicitors:

Plaintiffs:     Mallesons Stephen Jaques

First Defendants            :     State Solicitor for Western Australia

Second Defendant         :     State Solicitor for Western Australia

Third Defendant            :     State Solicitor for Western Australia

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

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596

Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269

Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374

Darkinjung Local Aboriginal Land Council v Minister for Aboriginal Affairs [2006] NSWLEC 291; (2006) 147 LGERA 348

Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Hall v University of NSW [2003] NSWSC 669

Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408

Kelson v Forward (1995) 60 FCR 39

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Mahon v Air New Zealand [1984] AC 808

Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR

Minister for Arts, Heritage & Environment v Peko Wallsend (1987) 15 FCR 274

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601

National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57

Re Minister for Resources;…

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Apache Northwest Pty Ltd v Agostini [2009] WASC 225
Case
[2009] WASC 225
Decision Date

CaseChat Overview and Summary

The case of Apache Northwest Pty Ltd v Agostini involved the Apache companies, which were involved in oil and gas interests, and the Minister for Industry, Tourism and Resources, represented by the second defendant, Agostini. The dispute centred around the Minister's announcement of a non-statutory investigation and the subsequent preparation and publication of a report, which the Apache companies claimed could affect their reputation and commercial prospects. The court was tasked with determining whether the preparation of the report and its publication attracted a duty of procedural fairness, and whether this duty was breached by the failure to give the Apache companies an opportunity to comment on the adverse contents of the report.

The central legal issues in the case were whether the preparation of a report by a Minister in the context of a non-statutory investigation attracted a duty of procedural fairness, and if so, whether this duty was breached by the failure to provide the Apache companies with an opportunity to comment on the adverse contents of the report. The court also had to consider whether the publication of the report would attract a duty of procedural fairness and whether a report could affect the plaintiffs' reputation to the extent that it attracted such a duty in the context of the exercise of non-statutory public power.

The court's reasoning focused on the rights and interests of the Apache companies, particularly their reputation and the prospect of commercial damage. The court noted that a duty of procedural fairness arises when an administrative decision affects rights, interests, and legitimate expectations, subject to a contrary statutory intention. The court applied the principles from the High Court decision in Kioa v West, which held that a duty of procedural fairness can arise in relation to administrative decisions made under statute or otherwise. The court also considered the High Court's decision in Annetts v McCann, which concerned the conduct of a coronial inquest under a statutory power. The court concluded that the interests of the Apache companies, including their reputation and the potential for commercial damage, were sufficiently affected to attract a duty of procedural fairness. However, the court found that the Minister's failure to provide an opportunity for the Apache companies to comment on the adverse contents of the report did not breach this duty, as the report was not a decision-making process that required procedural fairness.

The court ordered that the appeal be dismissed and that the plaintiffs pay the costs of the defendants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The starting point is the rights and interests of the Apache companies. It is the potential for a decision to affect rights, interests and legitimate expectations that attracts the requirement of procedural fairness: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 [31]. The interests that the Apache companies contend support the existence of a duty of procedural fairness are set out in the particulars under par 12 of the statement of claim; see [49]. In summary, the Apache companies rely upon the following interests:(a)their reputation;(b)the prospect of commercial damage if the Minister were to be influenced in the exercise of his powers and functions in relation to the Apache companies' oil and gas interests and in any future applications for further interests;(c)the fact that Apache Northwest is one of the accused in the prosecution referred to in [39] of these reasons. I will deal with each of these interests in turn. The question is: in the circumstances, does the interest attract a duty of procedural fairness? Discussion of whether a duty of procedural fairness (or natural justice) arises often commences with the decision of the High Court in Kioa v West [1985] HCA 81; (1985) 159 CLR 550. In that case, in a passage that has been cited many times, Mason J said:… there is a common law duty to act fairly, in a sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention (584). Mason J said that it was necessary, before a duty of procedural fairness would arise, that the rights, interests and expectations of the individual citizen were affected in a direct and immediate way (584). The effect on a person must be as an individual, rather than as a member of the public or a class of the public, for a duty of procedural fairness to arise. It is clear from Mason J's discussion, at (584) and following, that a duty of procedural fairness can arise in relation to administrative decisions whether made under statute or otherwise. Brennan J, on the other hand, analysed procedural fairness as arising from the proper construction of the statute and as relating only to the exercise of statutory powers. I will say more later in these reasons about the application of the doctrine of procedural fairness to the exercise of non-statutory powers. In Kioa v West Mason J referred to a party's legitimate expectations, as well as rights and interests. The Apache companies did not seek to invoke the notion of legitimate expectation. Consequently, there is no need to deal with any question as to the content or utility of that concept in determining whether a duty of procedural fairness arises (as to which see Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 [269] ‑ [271]). Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 concerned the conduct of a coronial inquest under a statutory power. The Coroner was conducting an inquest into the deaths of two boys. The parents of those boys were represented at the inquest by counsel who were permitted to examine and cross-examine witnesses. At the conclusion of the evidence counsel for the parents of one of the boys informed the Coroner that he wished to make a closing address covering the whole of the evidence. The Coroner declined to permit any closing addresses by counsel for the parents. The High Court held that the parents had a common law right to be heard in opposition to any potential adverse finding in relation to themselves or their son but did not have a right to make submissions on the general subject matter of the inquest.