Apache Northwest Pty Ltd v Agostini [No 2]

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   APACHE NORTHWEST PTY LTD -v- AGOSTINI [No 2] [2009] WASCA 231

CORAM:   WHEELER JA

BUSS JA
NEWNES JA

HEARD:   10 SEPTEMBER 2009

DELIVERED          :   22 DECEMBER 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:

Administrative law - Procedural fairness - Minister commissioned and publicly announced an investigation into the rupture of a major natural gas pipeline - Minister retained experts to carry out the investigation and prepare and deliver a report to him - Minister appointed experts as inspectors under s 62 of the Petroleum Pipelines Act 1969 (WA) - First-named appellant a licensee of the pipeline - Second-named appellant the operator of gas processing facilities connected to the pipeline - Whether the investigators were obliged to accord procedural fairness to the appellants before completing and delivering their report to the Minister - Juridical basis of procedural fairness - Procedural fairness and the exercise of non-statutory public functions and powers or prerogative powers - Reputation as an interest protected by procedural fairness - Preliminary decisions and investigations - Whether any obligation to accord procedural fairness was breached

Legislation:

Parliamentary Privileges Act 1891 (WA), s 1
Petroleum Pipelines Act 1969 (WA), s 11, s 12, s 24, s 36A, s 38(b), s 62, s 63

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellants:     Mr J E Griffiths SC & 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):

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

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

Apache Northwest Pty Ltd v Agostini [2009] FCA 534; (2009) 256 ALR 56

Apache Northwest Pty Ltd v Agostini [2009] WASC 225

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

Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1

Bushell v Environment Secretary [1981] AC 75

Byrne v Marles [2008] VSCA 78; (2008) 19 VR 612

Castle v Director General State Emergency Service [2008] NSWCA 231

Commissioner for Australian Capital Territory…

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Details
Case
[2009] WASCA 231
Decision Date

CaseChat Overview and Summary

Apache Northwest Pty Ltd and Agostini were involved in a legal dispute concerning the procedural fairness obligations of investigators appointed by the Minister for Petroleum Pipelines under the Petroleum Pipelines Act 1969 (WA). The appellants, being a licensee and the operator of gas processing facilities, respectively, sought to establish that the investigators were required to provide them with procedural fairness before completing and delivering their report to the Minister. The case arose from an investigation into the rupture of a major natural gas pipeline, and the appellants argued that their reputation was adversely affected by the process and outcome of the investigation. The court was tasked with determining the juridical basis of procedural fairness and whether any obligation to accord procedural fairness was breached in this context.

The primary legal issue before the court was whether the investigators were obliged to accord procedural fairness to the appellants before delivering their report to the Minister. This involved examining the nature and extent of the appellants' interest in their reputation and whether the process of investigation and communication with the Minister gave rise to a duty of procedural fairness. Additionally, the court had to consider whether the preliminary decisions and investigations conducted by the investigators fell within the scope of procedural fairness obligations.

The court found that the appellants' interest in their reputation was not sufficient to attract a duty of procedural fairness in this case. The court held that the risk to the appellants' reputation arose at the point of presentation of the report to the Minister, but this did not necessarily engage the requirements of procedural fairness. The court observed that there is a recognised distinction between general reputation and the view which a particular individual may take of a person, and that cases recognising an interest in "reputation" as attracting procedural fairness generally refer to the interest in general reputation. Furthermore, the court held that it is difficult to find that a communication to a State Minister concerning matters for which the Minister is responsible affects reputation so as to attract a duty of procedural fairness. The court concluded that the appellants' interest in their reputation was not sufficient to establish a breach of procedural fairness obligations.

The court ultimately dismissed the appeal, affirming the decision of the primary judge that no obligation to accord procedural fairness was breached. The court held that the investigators were not required to provide the appellants with procedural fairness before delivering their report to the Minister. The court found that the risk to the appellants' reputation did not engage the requirements of procedural fairness, and that the investigators' actions did not breach any procedural fairness obligations. The court's decision was based on the view that the appellants' interest in their reputation was not sufficient to establish a duty of procedural fairness, and that the preliminary decisions and investigations conducted by the investigators did not fall within the scope of procedural fairness obligations.

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

So far as the possibility of criminal proceedings is concerned, even if the report might be used for the purpose of determining whether there should be a prosecution of the appellants for an offence against the Act, or determining how such a prosecution should proceed, that would not be a matter which would attract the requirements of procedural fairness. It is in the nature of criminal proceedings that fairness is provided by the mechanism of disclosure, prior to trial, of the case which the prosecuting authority will seek to make against a person, and by the process of the trial itself. It is not afforded by requiring disclosure, at an earlier stage, of the process of the investigation. As was said in National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 323 ‑ 324 per Mason, Wilson and Dawson JJ:It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry. So far as disclosure to officers within the Minister's department was concerned, this did not appear to be pressed as a distinct basis upon which the duty of procedural fairness was alleged to be attracted. Although it was a matter mentioned in passing during the course of oral argument, it appeared to us to be subsumed in the argument concerning publication to the Minister himself, and concerning the effect of that publication upon the reputation of the appellants. The appellants put their submissions on two bases, in relation to the issue of reputation. First, they submit that the interest which they have in their reputation is damaged at the point of presentation of the report to the Minister, even if the Minister does not republish the report. Alternatively, as we understood it, it was suggested that the primary judge should have inferred that the Minister intended to republish the report, probably by tabling it in Parliament. We would not accept that a risk to the appellants' reputation arises at the time of publication of the report to the Minister, so as to attract a duty of procedural fairness. There are three reasons for that view. First, as the primary judge observed, there is a recognised distinction between "reputation", which at law is generally considered as general reputation, and the view which a particular individual may take of a person. In the absence of an indication to the contrary, we would assume that those cases which have recognised an interest in "reputation" as attracting procedural fairness, are referring to the interest in general reputation. Second, so far as this case is concerned, it seems to us that there is a difficulty in principle with finding that a communication to a State Minister, concerning matters for which the Minister is responsible, affects reputation so as to attract a duty of procedural fairness. As the respondents point out, the State's constitutional structure necessarily entails communication between government departments and responsible Ministers, and advice from the department to the Minister. That advice may be a very informal oral communication, may be a formal and detailed briefing note, or may be anything in between. It will frequently be necessary for such advice to contain information which has been gleaned by officers as a result of their carrying out public functions of oversight, investigation, observation or information gathering.