Apache Northwest Pty Ltd v Agostini [No 2] - [2009] WASCA 231

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 Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Cornall v AB (A Solicitor) [1995] 1 VR 372
Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269
Council of Civil Service Unions v Minister for The Civil Service [1985] AC 374
Daganayasi v Minister for Immigration [1980] 2 NZLR 130
Davis v Commonwealth [1988] HCA 63; (1988) 166 CLR 79
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648
Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487
Holding v Jennings [1979] VR 289
Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149
Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408
Kelson v Forward [1995] FCA 1584; (1995) 60 FCR 39
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Mahon v Air New Zealand [1984] AC 808
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Arts, Heritage and Environment v Peko‑Wallsend Ltd (1987) 15 FCR 274
Minister for Health v Thomson (1985) 8 FCR 213
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273
Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214
Minister for Local Government v South Sydney City Council [2002] NSWCA 288; (2002) 55 NSWLR 381
National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296
OzEpulse Pty Ltd v Minister for Agriculture, Fisheries and Forestry [2007] FCA 1601; (2007) 163 FCR 562
Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (No 2) [1981] 1 NZLR 618
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Rees v Crane [1994] 2 WLR 476
State of Victoria v Master Builders' Association of Victoria [1995] 2 VR 121
Stewart v Ronalds [2009] NSWCA 277; (2009) 259 ALR 86
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Testro Bros Pty Ltd v Tait (1963) 109 CLR 353
The State of South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378
The State of Victoria v The Master Builders' Association of Victoria [1995] 2 VR 121
Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121
Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356
Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78

Table of contents

Wheeler & Newnes JJA's reasons
Grounds 1 - 4: Potential prosecution; and oil and gas interests
The appellants' reputation - publication to the Minister

The appellants' reputation - wider publication
Purpose of the report

Conclusion
Buss JA's reasons
The initial State investigation
The joint Commonwealth/State inquiry
The Minister's media statement and the final State investigation
The appointment of Mr Agostini and Mr Bills as inspectors
The issue of a prosecution notice for breach of the Act
The delivery of the completed Final Investigation Report to Mr Tinapple of the DMP
The emergence of the dispute between the Apache companies and the respondents
The Apache companies commence the primary proceedings
The pleadings in the primary proceedings
The trial of and judgment in the primary proceedings
The Apache companies commence this appeal
The grounds of appeal
The notice of contention
Grounds 1 ‑ 4 of the appeal: general
Grounds 1 - 4 of the appeal: the primary judge's findings and reasons
Grounds 1 ‑ 4 of the appeal: the doctrine of procedural fairness
Grounds 1 - 4 of the appeal: the juridical basis of procedural fairness
Grounds 1 - 4 of the appeal: procedural fairness and the exercise of non‑statutory public functions and powers or prerogative powers
Grounds 1 - 4 of the appeal: reputation as an interest protected by procedural fairness
Grounds 1 - 4 of the appeal: preliminary decisions and investigations
Grounds 1 ‑ 4 of the appeal: the decision in Kelson v Forward
Grounds 1 - 4 of the appeal: the relevant statutory framework relating to the appointment of inspectors under the Act
Grounds 1 - 4 of the appeal: the Minister's powers under the Act in relation to licences applied for or granted under the Act
Grounds 1 - 4 of the appeal: the respondents' submissions
Grounds 1 ‑ 4 of the appeal: their merits
Grounds 1 - 4 of the appeal: conclusion
Grounds 5 and 6 of the appeal: general
Grounds 5 and 6 of the appeal: the Apache companies' pleaded case
Grounds 5 and 6 of the appeal: the primary judge's findings and reasons
Grounds 5 and 6 of the appeal: the content of the procedural fairness hearing rule
Grounds 5 and 6 of the appeal: the Apache companies' submissions
Grounds 5 and 6 of the appeal: their merits
Grounds 5 and 6 of the appeal: conclusion
Ground (a) of the notice of contention: the respondents' submissions
Ground (a) of the notice of contention: its merits
Ground (b) of the notice of contention: the respondents' submissions
Ground (b) of the notice of contention: its merits
Result of the appeal

WHEELER & NEWNES JJA: We have had the advantage of reading in draft the reasons for decision of Buss JA. We agree with his Honour, for the reasons he gives, that grounds of appeal 5 and 6 fail.
We differ, however, from his Honour in respect of grounds of appeal 1 ‑ 4, concerning whether the appellants are entitled to be heard in the preparation and provision to the Minister of the Varanus Island Final Investigation Report (the investigation report). In our respectful view, no duty of procedural fairness was owed to the appellants in the preparation and provision to the Minister of the investigation report.
The background and relevant circumstances are set out in the reasons of Buss JA and we will not repeat them except to the extent necessary to explain our reasons.
The appellants contend that they have interests giving rise to a requirement that they be afforded a reasonable opportunity to be heard in relation to the Adverse Contents of the Investigation Report before the investigation report is completed and provided to the third respondent (the Minister). Those interests concern, broadly, their reputations, and also the prospect of commercial damage if the third respondent were to be influenced in the future exercise of his powers and functions under the Act in respect of matters in which the appellants have or seek to acquire an interest. We deal with those issues in reverse order.

Grounds 1 - 4: Potential prosecution; and oil and gas interests

Although the primary focus of the appellants' submissions in relation to these grounds appeared to be upon the risk to their reputation, the appellants also suggested that there were three other factors which gave rise to a duty on the part of the first respondents to afford the appellants procedural fairness before making their report available to the Minister. Those factors were: that it was apparent that the report would be made available not only to the Minister, but to officers of the department with responsibility for the administration of the Petroleum Pipelines Act 1969 (WA) (the Act); that the Act created a variety of offences in relation to the management of pipelines, to which some matters in the report may be relevant; and that the Minister has power under the Act to take actions such as refuse to renew applications for licences, impose conditions on the grant of a licence, and cancel a licence for breach of conditions or breach of the Act or regulations.
The second and third of the suggested factors referred to above are not capable of attracting a duty to afford natural justice. So far as the Minister's powers in relation to licences are concerned, the relevant powers are set out, or summarised, in the reasons of Buss JA at [170] ‑ [175]. In relation to some of them, such as s 11 (concerned with refusal of applications for renewal), and s 24 (concerned with cancellation), it is clear that the Act sets out specific procedural fairness requirements. Section 11 requires the Minister, before refusing an application for renewal, to give particulars of the reasons for his intention and requires him to take into account particulars of submissions made to him concerning those matters. Section 24 would appear to require the Minister to specify the ground upon which he proposes to cancel the licence, and requires the Minister to publish notice of his intention and to take into account matters submitted to him. Section 12, which is concerned with the imposition of conditions on a licence, does not contain any similar procedural provisions. However, where the Minister proposes new, and more onerous, conditions upon an existing licence, then it would appear that the common law requirements of procedural fairness would necessarily apply to that decision, so that notice and an opportunity to be heard would be given to the appellants.
If the report does not influence the Minister to exercise any of his statutory powers in a manner which is adverse to the appellants, their interests in that respect will not be affected by it. If, however, the Minister considers that matters within the report should be taken into account in the exercise of his powers, then the appellants will be afforded procedural fairness during that process. In neither of those possible outcomes would the report, of itself, affect any interest of the appellants.
However, it is submitted by the appellants, as we understand it, that the Minister might not consciously advert to the contents of the report in deciding to take such a step, but might still be unconsciously affected by it. It would follow, it is suggested, that the Minister would fail to specify, in a notice under the Act, some matter arising out of the report which was, in fact, operating on his mind (because he was unconscious of its operation). In that event, the appellants would be deprived of the chance to deal with it. It was also, as we understand it, suggested that it would be "too late" for the appellants to be afforded an opportunity to deal with material arising out of the report, in circumstances where the Minister was proposing to rely upon matters contained within it to take some action, because the report was a report of experts, the Minister was a lay person and the appellants would necessarily be at a disadvantage in a practical sense in trying to persuade the Minister that he should not rely upon material in the report.
The difficulty with the submissions which we have just mentioned is that they appear to us to contradict the premises which lie at the heart of the leading cases which concern the requirements of procedural fairness. Those cases assume that, where a decision‑maker has before him or her material adverse to a person, which is relevant to a decision he or she proposed to take, then if the decision‑maker gives the person notice of that material, and if the decision‑maker gives the person an opportunity to be heard in relation to the material, the decision‑making process will be fair. It will often be the case that the person who may be affected by a decision is in some practical way on an unequal footing with the person providing the adverse material, or is at a practical disadvantage in the decision‑making process. It will also often be the case that a whole range of accumulated experiences, not known to the applicant, will affect the decision‑maker's outlook. However, such considerations do not affect the fairness of the process, although they may affect the ability of the person affected to achieve the outcome they seek.
In the case of Kioa v West [1985] HCA 81; (1985) 159 CLR 550, for example, a briefing note had been provided to the Minister's delegate by an officer of the department. It is likely that the officer had a degree of expertise in immigration matters. The briefing note had been prepared without consulting the appellant about the matters which it contained. The court held that it was necessary for the Minister's delegate to bring to the attention of the appellant "the critical issue or factor" upon which the delegate proposed to rely (at 587 per Mason J), or, in other words, information which was "credible, relevant, and significant" (at 629 per Brennan J).
As Brennan J pointed out in that case, the requirement is in order to overcome the real risk of prejudice, albeit unconscious, where a decision maker endeavours to shut out of his or her mind adverse information. Implicit in the decision in that case was the proposition that, whatever preconceptions the Minister's delegate may have had, consciously or unconsciously, as a result of reading the briefing note, provided only that the appellant was given an opportunity to comment upon anything which the delegate considered to be relevant, the process would be fair. It was not suggested that (as the appellants' submission in this case would appear to imply) it was necessary for the entirety of the materials before the delegate to be disclosed to the appellant, in case there might be something in them which would give rise to unconscious prejudice. Rather, the duty only extended to the disclosure of material which the delegate consciously considered to be relevant. Further, it was not suggested that it was necessary for the officer writing the briefing note to afford the appellant procedural fairness; it was enough that the decision‑maker did so. See also Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [16] ‑ [19].
While it is sometimes the case that a person who prepares a report for a decision‑maker must afford procedural fairness, that occurs where the report is a step in a decision‑making process, either as an essential precondition, or as a matter to which a decision‑maker must have regard. The principle appears to be that enunciated, albeit in a somewhat different context, in Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149, particularly at 164 ‑ 165. The report in the present case is not a step in a process of any kind, however; it is merely material which the Minister may find useful in his administration of the Act. We would add, in this context, that we agree with the observation of Wilcox J in Minister for the Arts, Heritage and Environment v Peko‑Wallsend (1987) 15 FCR 274 at 306 that the mere fact that information might create "a climate conducive" to a decision adverse to a person's interest is not sufficient to attract a duty of procedural fairness.
So far as the Minister's lack of technical expertise is concerned, there is simply no reason to consider that the Minister would not afford proper weight to any submissions which might at any time be made to him, concerning the exercise of his powers under the Act, by the appellants, which would, of course, include paying proper regard to any reports or submissions which might be made by experts engaged on behalf of the appellants. The Minister would also, no doubt, have access to experts within, or engaged by, his own department if there were disputed aspects of the report which he thought it necessary to consider.
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' reputation - publication to the Minister

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.
Any report or communication prepared for a Minister, whether by officers of his department or by third parties engaged for that purpose, may contain material adverse to the interests (including the reputation) of some person or persons. The fact that a report to be provided to the Minister contains such material cannot have the effect that before it can be disclosed to the Minister or to officers of the department, the affected party must be given an opportunity to be heard in respect of that material. Responsible government depends upon the assumption that Ministers have access to, and can freely request and be given, information which is held by departmental officers. It would be odd, if a requirement to afford natural justice imposed upon those officers a duty to delay in giving information to their Minister, until such time as persons the subject of adverse information had been given an opportunity to be heard about it, since it seems to us that a Minster's responsibility would continue even where (for whatever reason) he or she had not been given information.
It may be that the first respondents are not departmental officers. Their position is not made entirely clear in the reasons below, or in the submissions. The Minister's media statement was to the effect that the "department" would carry out the final stage of investigations and that the first respondents would "co‑ordinate" this investigation. In its reference to "engaging these two experts" the media statement tends to suggest that they are not already employed in the public service; and some of the correspondence in the green appeal book asserts that at least one of the inspectors has interests which may not be compatible with a position as a public sector employee in this area (for example, page 172). However, to the extent that they are engaged, it would appear, merely for the purpose of informing the Minister, in relation to an aspect of the operation of one of the statutes for which he is responsible, their position appears to us to be analogous to that of departmental officers.
It does not appear to us to be a relevant point of distinction that the first respondents are appointed pursuant to a specific statutory provision, rather than having the general functions and responsibilities of departmental officers. We accept for the purposes of these reasons that the obligation to accord procedural fairness derives from the common law, rather than from an imputed or implied Parliamentary intention: see Minister for Local Government v South Sydney City Council [2002] NSWCA 288; (2002) 55 NSWLR 381 at [10] ‑ [12] per Spigelman CJ (Ipp AJA agreeing). If that is so, then the duty arises in any case where public power is being exercised, and the fact that the inspectors have been appointed pursuant to specific statutory provision does not give rise to any obligation on them to afford procedural fairness, if a like obligation would not rest upon a person performing the same function pursuant to non‑statutory power: see State of Victoria v Master Builders' Association of Victoria [1995] 2 VR 121 at 147 ‑ 149 per Ormiston J, 160 ‑ 161 per Eames J.
Finally, in relation to the question of what is to be understood by "reputation", it seems to us that the authorities in which protection of reputation has been recognised as an interest attracting the requirements of procedural fairness have regarded "reputation" in this context as being general reputation. That is certainly so, in relation to Privy Council and High Court authority. So far as courts below that level are concerned, it should perhaps be more cautiously said that there is no case which appears to be directly inconsistent with the proposition that reputation in this context refers to general reputation.
The first of the modern cases recognising an interest in reputation as attracting procedural fairness is Mahon v Air New Zealand [1984] AC 808. That case concerned procedural fairness in the context of a Royal Commission report. A Royal Commission is, of course, generally appointed for the purpose of conducting hearings, which will by and large be public, in order to make a report upon a subject which is considered to be of significant public interest. The publication of the report is the principal purpose of the Royal Commission and, because the appointment of a Royal Commission is generally considered to be a serious step, its findings are likely to be accorded weight in the community at large. In the Privy Council, there was little discussion of the reasons why it was held that this particular Royal Commission had a duty to afford procedural fairness. Rather, the Privy Council, in effect, adopted the New Zealand Court of Appeal's interpretation of the New Zealand statute governing judicial review in that country (at 817).
The Court of Appeal in New Zealand had treated the question of whether procedural fairness was required as essentially one of statutory interpretation (Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (No 2) [1981] 1 NZLR 618 at 622 ‑ 623, 627). In considering whether the finding of the Royal Commission could be considered to be a decision "affecting" rights within the meaning of the relevant statute, the Court of Appeal said at 627:
In the present case ... it was virtually certain that the findings of the Erebus Commission would be published by the Government. The effect on the reputation of persons found guilty of the misconduct described in the Report was likely to be devastating. At common law every citizen has a right not to be defamed without justification. Severe criticism by a public officer made after a public inquiry and inevitably accompanied by the widest publicity affects that right especially when the officer has judicial status and nonetheless because he has judicial immunity.
The almost inevitable likelihood of publication to the whole of the community was clearly a factor of significance to the characterisation of the interest protected.
In Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, the High Court accepted that the parents of a deceased child had a common law right to be heard in opposition to any potential adverse finding in relation to the reputation of their deceased son. The coroner was empowered to inquire into the manner and cause of death and to give a decision or finding setting forth, inter alia, "how ... the deceased came by his death" (s 11 Coroner's Act 1920 (WA)). Any such finding would be a public document (except perhaps in very exceptional cases). Brennan J appears to have based his decision squarely on the proposition that personal reputation is an interest which would attract procedural fairness, citing Mahon (at 608). Toohey J noted that it was common ground before the High Court, as before the court below, that the rules of natural justice did apply to a coronial inquiry (at 617), and therefore considered only the content of the rules as applicable to that case. The majority decision of Mason CJ, Deane and McHugh JJ based the requirement to hear the parents of the deceased child upon two matters. They were expressed in these terms (at 599):
First, the appellants have been granted - and properly granted - representation at the coronial inquiry. The grant of representation did more than recognise the appellants' personal interest in the performance of the duties which the law imposes on the coroner ... It also created a legitimate expectation that the coroner would not make any finding adverse to the interests which they represent without giving them the opportunity to be heard in opposition to that finding. Secondly, the interests which they represent include the protection of their deceased son.
No issue of legitimate expectation arises in the present case. The majority in Annetts also noted that the rules of natural justice had developed to apply to public inquiries "whose findings of their own force could not affect a person's legal rights or obligations" (at 599). The cases cited by the majority, in relation to this proposition, fall into two categories. Mahon in one category, is a "bare" reputation case, in the sense that no further consequence would follow from publication of the findings. The other cases, however (Testro Bros Pty Ltd v Tait (1963) 109 CLR 353 and National Companies and Securities Commission v News Corporation), were "step in a process" cases, in the sense that although the investigation in those cases did not of itself affect rights, it was a step in a process which could ultimately have that effect.
Finally, in the High Court, Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 was also concerned with reputation. The Criminal Justice Commission Report was by statute required to be furnished to the chair of the Parliamentary Criminal Justice Committee, the Speaker and the relevant Minister. Such a report was by statute granted the immunities and privileges of a report tabled in and printed by order of the Legislative Assembly. So far as the common law duty of procedural fairness was concerned, Mason CJ, Dawson, Toohey and Gaudron JJ said (at 577 ‑ 578):
[T]he law proceeds on the basis that reputation itself is to be protected. And the Commission's report, published in the manner required by s 2.18 of the Act, could only ensure that, thereafter, the appellants' reputations in Queensland would be of the worst kind. [Emphasis supplied]
Although the relevance of the fact of publication was not the subject of discussion in the cases to which we have referred above, in each of the cases binding on this court the context in which reputation was held to attract a duty of procedural fairness was one in which the purpose of the relevant inquiry was the production of a report which would be published to the world at large. In the Court of Appeal in New Zealand in Mahon, and in the High Court in Ainsworth, the fact of that publication (which was either contemplated or required by statute) was expressly referred to, and was apparently regarded as a relevant consideration.
We mention briefly five decisions in other States in which the concept of reputation has been considered. In the Master Builders' case (State of Victoria v Master Builders' Association of Victoria), Tadgell J (at 140) accepted that the contractors were entitled to protection of their reputation against the "dissemination of the black list among government departments and agencies and the like having a dominant influence in the building industry". Publication in that case in fact went beyond government departments and agencies, to all municipal councils. The case may be regarded as inconsistent with the view we take, on the basis that it did not involve publication to the world at large, or as consistent with our view on the basis that Tadgell J seems to have relied upon a publication to a relatively large group of interested persons.
We do not think that in the present case it is necessary to attempt to describe the nature or extent of the publication of adverse material which is sufficient to give rise to an obligation to afford procedural fairness on the ground that it may affect a person's interest in their reputation. That will depend upon the particular circumstances of the case. It is sufficient to say that, in our view, in this case publication of the investigation report to the Minister and officers of the department is not a publication of sufficient breadth to give rise to such an obligation.
Kelson v Forward (1995) 60 FCR 39, a decision of a single judge in the Australian Capital Territory, was particularly relied upon by the appellants. It involved the making of a report which was presented to a Minister. There was no evidence, it would appear, about any proposed further publication. It was held in that case that the "risk to reputation" posed by the report began at the moment it was submitted to the Minister because "the reputation at risk is in part at least that of the public sector manager, while the recipient ... is a person who can properly be taken to have a direct interest in ascertaining the accuracy or otherwise of that reputation [ie, the Minister]" (at 62). We do not understand this passage. It appears to be based upon an assumption that "reputation" is to be understood as "general reputation", or at least upon an assumption that a confidential report may be regarded differently from a published report, but the basis upon which reputation was then said to be "at risk" is not clear to us. It was also noted in that case that the report might constitute a factor in subsequent decisions taken in relation to persons the subject of it (at 62); we are not sure whether more was meant by this than that it might create a "climate" of the kind to which we referred in [12]. In any event, that case seems to have turned primarily upon the question of whether the relevant report was a reviewable "decision" for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth), a different question from that in consideration here.
A decision of a single judge of the Land and Environment Court of New South Wales, Trindall v Minister for Aboriginal Affairs [2004] NSWLEC 121, was one in which the reputational interest which attracts a duty of procedural fairness was apparently considered to be general reputation. At [118] of that case, the fact that "[t]he report may never be published" was a factor which led to the view that the author did not owe a duty of procedural fairness. This court has no duty to follow that case (cfFarah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89), but it is of some persuasive value.
Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269 contains contradictory indications concerning what is meant by "reputation". It involved the presentation to the Minister, Dr Cornwall, and the tabling by Dr Cornwall in the South Australian Parliament, of a report written by a Review Committee, which included certain allegations concerning the respondent. The Full Court of the Supreme Court of South Australia found, having discussed Ainsworth, that there was an obligation at common law on both the Review Committee and Dr Cornwall to afford procedural fairness to those whose reputations might be affected by the inclusion of those allegations in the report (at [250]). That may be taken as supporting the view that publication to the Minister alone of allegations affecting a person's reputation would attract a duty of procedural fairness. However, the same paragraph went on to find only that illegality was established in Dr Cornwall "directing the publication of the unsubstantiated allegations without affording procedural fairness to [the respondent]" (emphasis supplied). That observation would tend to suggest that it was the publication to the world at large which attracted the duty. It was found in that case that one purpose, if not the purpose, of the report was to provide a public justification for a decision which Dr Cornwall proposed to take. In that sense, Cornwall may have been a case in which publication was seen as the purpose of the report even if that purpose was not, as in cases like Ainsworth, a statutory one.
Finally, in this context, we mention Stewart v Ronalds [2009] NSWCA 277; (2009) 259 ALR 86. That involved an investigation by a barrister into certain allegations concerning a Minister. The report of the barrister was to be provided to the Premier, for the purpose of assisting him in his deliberations concerning whether the Minister had been truthful with the Premier and in order to provide a finding of fact upon the basis of which the Department of Premier and Cabinet would handle a complaint concerning the Minister. The barrister was asked to provide her report "in a form suitable for tabling in Parliament". It was not necessary to determine whether the barrister owed the Minister a duty of procedural fairness or not, and no member of the Court of Appeal of New South Wales expressed a concluded view in relation to that issue.

The appellants' reputation - wider publication

For the reasons set out above, we are of the view that no duty of procedural fairness was owed by the first respondents to the appellants, if the report which the former was to produce was a report simply for the purpose of informing the Minister, and those assisting him, in relation to matters for which he was ultimately responsible to Parliament, including the administration of the Act. However, if the purpose of the report was in order to inform not just the Minister, but the public at large, then, in our view, a duty of procedural fairness would have been owed. The investigation and report would, in that case, be characterised as a formal process, carried out by experts, for establishing in the eyes of the public the causes of the explosion on Varanus Island, including the role of the appellants in relation to that explosion.
If the report was intended as a report to the public at large, either through being tabled in Parliament, or by publication by the Minister in some other way, the appellants' interest in their reputation would not be adequately protected by an opportunity, subsequent to the completion of the report, to make submissions to the Minister. That is because submissions to the Minister would not cause any alteration to the content of the report itself. The most that submissions to the Minister might do, if the appellants were able to discredit the report sufficiently, would be to cause him either to change his mind so as to refrain from publishing it, or alternatively to lead him to table in Parliament, or otherwise publish at the same time, the appellants' comments concerning the report. However, assuming that the Minister did proceed to publish the report, any comments of the appellants would plainly not carry the same weight as the report itself, so far as the public was concerned. In all of the reputation cases considered above, it would, of course, always have been open to a person whose reputation was affected by any of the various reports, to seek to publish through the media (or in the case of Ainsworth, perhaps, to seek to have tabled in Parliament) their own comments taking issue with matters contained in the reports. It was not, however, suggested in any of those cases that such an opportunity would be an adequate substitute for an ability to influence the "decision‑maker" - that is, to influence the authors of the report.

Although the learned primary judge held that "any decision to publish generally the Investigation Report would attract a duty of procedural fairness" (at [112]), we would respectfully doubt the correctness of this proposition, at least as it relates to tabling of the report in Parliament. Whether a court should (or could) restrain the Minister from tabling in Parliament a report which he proposed to table, on the basis that a person had been denied procedural fairness in its preparation, is a question which we would not decide unless it was necessary to do so. We have not had the benefit of submissions on behalf of the presiding officer of the relevant House.
In any event, an ability to persuade the Minister not to publish the report is a very different thing from an ability to persuade the authors about what the contents of the report should be. Those two processes are not properly to be regarded as steps in one continuous process, but distinct decisions upon which different considerations would operate in each case.

Purpose of the report

In our view, the outcome of this appeal turns on what we have found to be the difficult question of whether this report should be regarded as one intended for the information of the Minister, which he may in due course decide to publish, or a report the purpose of which is publication to the public at large, but which the Minister might ultimately decide to refrain from publishing.
In our view, the report should be characterised as one falling into the former, rather than the latter, category. The matters which might give rise to an inference that, from the inception of the investigation process it was intended that the report would be published, are the following:
•public interest in the Varanus Island explosion;
•the fact that the commencement of the investigation was announced by way of media release; and
•the fact that the Minister had made public the original investigation report.
However, none of these necessarily leads to a conclusion that the intention from the outset was that the report should be published, as opposed to a conclusion that there is a likelihood (the degree of which is not presently ascertainable) that the Minister may in due course decide that it is desirable to publish the report.
There are a number of matters which suggest to us that the purpose of the report was the gathering of information to improve the administration of the Act, and perhaps also of determining whether there should be further prosecution action, rather than a primary purpose of providing a report to the public at large. The first of those matters relates to the terms of reference of the investigation dated 9 July 2008. Those terms of reference recite, by way of background, that the Department of Industry and Resources (DoIR) is assessing the damage at the Varanus Island facilities, is responsible for regulating the safety and integrity of facilities on Varanus Island, and has authorised an investigation into the incident. There are six matters listed as forming the purpose of the investigation. They are:
1.Fulfil the request from the Director, PRD of DoIR on 4 June 2008 to assist in the conduct of an investigation under the terms of the Service Contract dated 6 July 2007 between WA DoIR and NOPSA.
2.Gather information and interview people in a manner that does not compromise potential legal action. (This to be achieved through the direction of the WA DoIR representative on the investigation team).
3.Identify the facts and events relevant to the Incident.
4.Identify the likely cause(s) of the Incident.
5.Identify potential breaches of legislation based on the legal advice and direction provided by DoIR.
6.Formally gather evidence consistent with the requirements of DoIR as advised by the investigation team DoIR Inspector.
Although some of those matters, particularly items 3 and 4, would be relevant to an investigation which had as one of its principal purposes preparation of a report for the information of the public at large, the tone of the background and of the six items listed above, when taken together, is very much of an investigation directed at assisting the DoIR in evaluating its past administration of the facility, in deciding what steps to take in relation to future administration, and in deciding what legal action, if any, should be taken in relation to breaches of the legislation which it administers. That was the investigation which, according to the Ministerial Medial Statement, the first respondents were appointed to "finalise".
The Minister's media statement dated 8 May 2009 notes that the earlier report was publicly released by the Minister. It does not, however, contain any assertion or promise that the further report to be prepared by the first respondents will or may be published at any future time. The only reference to publication is a statement by the Minister that the first respondents' report "was expected to be delivered to the DMP [Department of Mines and Petroleum] by early June". So far as the purpose of the report was concerned, the Minister's media statement says only that finalising the investigation was "vital to fully understand what occurred and to ensure the ongoing safety of the petroleum industry in Western Australia". The second of those two matters plainly would not require publication. So far as the first is concerned, the statement does not suggest whose understanding the report is intended to advance.
There is, in the green appeal book, a quantity of correspondence between the solicitors for the appellants and for the State, following the release the Ministerial Media Statement and the appointment of the first respondents. It took place over the course of May and June 2009, and relevant documents are to be found at pages 174, 177, 184, 192, 202, 206 and 273 ‑ 275 of the green appeal book. None of the correspondence from the appellants' solicitors suggests that it is their understanding that the Minister proposes any further publication of the report once it is delivered to him. The whole focus of the correspondence appears to be upon the question of publication of the report to the Minister himself. The appellants' solicitors did not inquire whether any further publication was intended, or seek any assurances in that regard. The correspondence from the State contains no hint that further publication was contemplated (although, of course, it also does not contain any promise that there will be no republication).
Paragraphs 20 and 21 of the re‑amended statement of claim dated 30 July 2009 assert that, as at 8 May 2009, the Minister intended to release to the public the investigation report after it had been provided to him, and that he intends to release it or disclose its contents without first giving the appellants a reasonable opportunity to be heard in relation to the adverse contents "subject to being satisfied that the publication would not involve a contempt of court in light of the pending criminal proceedings". It appears from the reasons of the learned primary judge (at [114]) that pars 20 and 21 are assertions based upon an inference which the appellants submit should be drawn from the fact of the Ministerial Media Statement, its terms, and the fact that the earlier report was publicly released. Paragraphs 20 and 21 of the statement of claim are denied in the defence, which sets up a positive assertion that the Minister at all material times intended to decide what action to take in relation to the report once it was provided to him and he was apprised of its contents (defence par 12).
The assertion contained in par 12 of the defence appears to us to be a plausible inference to be drawn from the background and circumstances of the report. Given that background, the report may of course contain material which is capable of influencing the course of criminal proceedings, in which case the Minister, properly advised, plainly would

not publish it, at least until those proceedings were completed. It may contain material which reflects adversely upon some aspect of the administration of his department, in which case he may have some reluctance to publish it. It may contain material which is so damaging to the reputation of one or more persons that, properly advised, he considers that the fairest course is not to publish it, or to publish it in edited form. He may consider that the matter is too complex and technical, and that it is preferable to publish a summary of relevant aspects of the report. He may be advised that aspects of the report are factually inaccurate, or that the report is otherwise flawed, and that its publication is undesirable. He may provide the report to the appellants, who may persuade him that it is undesirable, for one or more of the reasons already mentioned, or for other reasons, to publish the report. As we have noted, the public interest in the subject matter is likely to bring some pressure to bear upon the Minister to publish either the entirety of the report, or substantial portions of it. However, in the absence of any express indication by the Minister, in his media statement or otherwise, that he proposes to publish the report (subject only to the possibility of being dissuaded), it seems to us more likely that a prudent Minister would defer making any decision about whether, when, and how to publish the report until such time as he had received it, considered its contents, and received appropriate advice concerning its contents.

In our view, therefore, the first respondents did not owe the appellants a duty of procedural fairness and we would not uphold grounds 1 ‑ 4 of the grounds of appeal.

Conclusion

We would dismiss the appeal.
BUSS JA: At all material times, the appellants (the Apache companies) have carried on the business of exploration, production and sale of oil and natural gas.
There are natural gas processing facilities on Varanus Island in Western Australia. The second‑named appellant (Apache Energy) is the operator of the facilities. The first‑named appellant (Apache Northwest) is one of the licensees of the pipeline which emanates from the facilities.
Varanus Island is part of the Lowendal group of islands. They are located to the east of the northern end of Barrow Island, approximately 100 km west of Karratha. Apache Energy operates oil and natural gas production facilities on and around Varanus Island. Hydrocarbons are

piped to the Island for processing. The hydrocarbon products are then exported either as natural gas to the mainland by two subsea pipelines (one 12 inches and the other 16 inches in diameter and each about 100 km in length) or as crude oil by tankers from the terminal at the Island.

The natural gas production from the facilities on Varanus Island comprises about 30% of the natural gas consumed in Western Australia.
On 3 June 2008, there were a series of explosions followed by a fire (the Varanus Island incident) at the natural gas processing facilities. As a result, the facilities were closed, and there was a substantial disruption for a significant period in the supply of natural gas (and electric power) to numerous commercial enterprises and businesses in this State.

The initial State investigation

On 9 July 2008, the third respondent (the Minister) announced an investigation by the second respondent (the State) through the Department of Mines and Petroleum (DMP) into the Varanus Island incident. The terms of reference of the investigation required the preparation of a report to the director of the DMP and that the investigation address:
(a)the pertinent sequence of events at Varanus Island during the incident;
(b)the likely cause(s) of the incident;
(c)any actions and omissions by the operator of the facilities, Apache Energy, or its contractors, leading up to and during the incident that may have contributed to its cause; and
(d)the identification of any potential for injury to persons arising directly from the fire and explosion(s) at the time of the incident.
On 7 October 2008, the State produced and presented to the Minister a report dated 7 October 2008 (the October Report) into the Varanus Island incident entitled 'Final report of the findings of the investigation into the pipe rupture and fire incident on 3 June 2008 at the facilities operated by Apache Energy Ltd on Varanus Island'.
The October Report on the initial State investigation concluded that the evidence gathered indicated the main causal factors in the Varanus Island incident were:
(a)ineffective anti-corrosion coating at the beach crossing section of the 12 inch sales gas pipeline, due to damage and/or dis‑bondment from the pipeline;
(b)ineffective cathodic protection of the wet‑dry transition zone of the beach crossing section of the 12 inch sales gas pipeline on the Island; and
(c)ineffective inspection and monitoring by the Apache companies of the beach crossing and shallow water section of the 12 inch sales gas pipeline on the Island.
The October Report noted that there were 'aspects of some lines of investigation that have not been settled, principally due to delays by Apache in providing information and delays in forensic testing of pipe samples'. It referred, in particular, to:
•Completion and full analysis of the forensic testing of pipe samples;
•Statements from key Apache personnel (Apache on behalf of its key personnel declined requests for interview);
•Identification of specific technical details relating to the cathodic protection of the 12" sales gas pipeline.
It then added:
These matters may be resolved in due course. However, such resolution is unlikely to significantly change the nature of the findings of the investigation and hence this Report is considered to adequately address the terms of reference of the investigation. It is understood that [DMP] will review this Report with a view to considering further action.
The October Report also said that the investigation revealed that Apache Northwest and its co‑licensees may have committed offences under s 36A and s 38(b) of the Petroleum Pipelines Act 1969 (WA) (the Act) and reg 10 of the Petroleum Pipelines Regulations 1970 (WA).
In October 2008, the Minister made available to the public the October Report.

The joint Commonwealth/State inquiry

On 9 January 2009, the Governments of the Commonwealth and Western Australia jointly announced the appointment of the first respondents (Mr Agostini and Mr Bills) to conduct an independent inquiry (the Inquiry) into the occupational health and safety and integrity regulation of upstream petroleum operations with a focus on the Varanus Island incident, and to present a report and recommendations to the Minister and others.
On 8 April 2009, the Apache companies commenced proceedings against Mr Agostini and Mr Bills in the Federal Court of Australia. The Apache companies alleged that Mr Agostini and Mr Bills had breached an obligation to accord the Apache companies procedural fairness by failing to provide them with a reasonable opportunity to review and comment upon the report of the Inquiry before it was presented to the Minister and others. On 8 April 2009, McKerracher J granted the Apache companies interlocutory injunctive relief.
Pursuant to an agreement made on 9 April 2009 between the Apache companies and Mr Agostini and Mr Bills, the Apache companies were given an opportunity to comment upon extracts from the report of the Inquiry.

The Minister's media statement and the final State investigation

On 8 May 2009, the Minister published generally a written statement headed 'Ministerial Media Statement'. In the statement, after reference to the October Report on the initial State investigation, it was said:
[T]hat investigation was limited by its reporting time frame and the absence of critical evidence, such as the results from destructive and non‑destructive testing of the pipeline. This is now available.
The Minister then said, in essence, that Mr Agostini and Mr Bills would be appointed as inspectors under the Act to perform 'the final stage of investigations'. This would provide 'a much more complete picture'. It was explained:
As inspectors, they will have access to relevant information obtained by [DMP], which will enable a more thorough final report and help identify the most likely causes, potential breaches and other relevant facts related to the incident.
The Minister then announced that the scope of the final State investigation would include:
(a)the pertinent sequence of events on Varanus Island during the Varanus Island incident;
(b)the likely cause(s) of the incident; and
(c)any actions and omissions by the operator of the Varanus Island facilities, Apache Energy, or its contractors leading up to and during the incident that may have contributed to those events.
The report (Final Investigation Report) was expected to be delivered to the Minister by early June 2009.

The appointment of Mr Agostini and Mr Bills as inspectors

By instruments dated 8 May 2009 and 6 May 2009 respectively, Mr Agostini and Mr Bills were appointed as inspectors under the Act 'with all the powers and obligations associated with such appointment, pursuant to the said [Act]'.

The issue of a prosecution notice for breach of the Act

On 27 May 2009, the DMP, as prosecutor, issued a prosecution notice against Apache Northwest and its co‑licensees of the Varanus Island pipeline, as accused. The prosecution notice alleged that, in breach of s 38(b) of the Act, the accused had failed to maintain the pipeline in good condition and repair. The particulars set out in the prosecution notice read:
The pipeline was not maintained in good condition and repair in that the 12" Sales Gas pipeline was corroded from a nominal wall thickness of 11.1 mm down to a wall thickness of 3 ‑ 4 mm in the area of the pipeline rupture which occurred at the pipeline beach crossing on Varanus Island on 3 June 2008.

The delivery of the completed Final Investigation Report to Mr Tinapple of the DMP

On 18 June 2009, Mr Agostini and Mr Bills delivered their completed Final Investigation Report to William Lee Tinapple, the executive director of the petroleum and environment division at the DMP.

The emergence of the dispute between the Apache companies and the respondents

After the Minister announced details of the final State investigation, there was extensive correspondence between the Apache companies' solicitors and the respondents' solicitors. It is necessary to recount the principal features of these communications and, also, notices issued by Mr Bills under s 63 of the Act.
By letter dated 13 May 2009, the Apache companies' solicitors wrote to the respondents' solicitors asserting that the final State investigation enlivened an obligation to accord procedural fairness to the Apache companies before the completion of the Final Investigation Report. The letter requested confirmation that the respondents would accord procedural fairness to the Apache companies 'in the preparation of … [the Final] Investigation Report'.
By letter dated 15 May 2009, the respondents' solicitors replied, relevantly, as follows:
The State does not consider that the provision of a report to the Minister by the inspectors 'enlivens an obligation to accord natural justice and procedural fairness' as asserted in your letter. However, the State assumes that the inspectors will conduct the Investigation fairly and will seek such information from your clients as they see appropriate for that purpose.
By letter dated 18 May 2009, the Apache companies' solicitors wrote to the respondents' solicitors asserting that 'there is an obligation upon Messrs Bills and Agostini to afford [the Apache companies] procedural fairness in the preparation of … [the Final] Investigation Report'.

By letter dated 18 May 2009, Mr Bills wrote to Apache Northwest's legal counsel, as follows:
I, Kym Bills, being an inspector appointed under Section 62 of the Petroleum Pipelines Act 1969 (PPA) as evidenced by the attached scanned certificate of appointment, require that you provide the information detailed below under Section 63 of the PPA.
•11 May 2009 document: 'Confidential Response to the draft Report of the Offshore Petroleum Regulatory Inquiry', including attachments and transmittal correspondence.
Section 63 of the PPA specifies that 'a person shall not, without reasonable excuse, obstruct or hinder an inspector in the exercise of his powers under this section.'
This information is to be delivered to the undersigned in hard copy and electronic (CD) format by 4pm on 19 May 2009 at Mineral House at 100 Plain St, East Perth.
The document dated 11 May 2009 referred to in this letter was the Apache companies' written submission to the joint Commonwealth/State inquiry.
By letter dated 19 May 2009, the Apache companies' solicitors informed Mr Bills and the respondents' solicitors that the Apache companies were bound by an undertaking given to the joint Commonwealth/State inquiry which precluded the Apache companies from producing the 11 May 2009 document to Mr Bills.
On 19 May 2009, the respondents' solicitors wrote to the Apache companies' solicitors, relevantly, as follows:
[T]here is nothing to suggest that the State inspectors propose to act in breach of any obligation to accord procedural fairness that might (contrary to the State's view) exist. Your letter does not indicate the steps which your client contends should be taken, but have not been taken, by the State inspectors before delivering any report to the State Minister, or any basis for thinking that the State inspectors will not take those steps.
I understand that the State inspectors are yet to prepare a report of the matters they have been asked by the State to investigate. It is unlikely that any report will be prepared prior to the end of the month. The [DMP] will consider whether or not it will provide a draft copy of the State Inspector's report to your clients for comment, before it is sent to the Minister, once the draft has been prepared and considered by the Department.
A letter dated 19 May 2009 from Mr Bills to Apache Northwest's legal counsel required Apache Northwest to produce the following information pursuant to s 63 of the Act:
•Draft documents produced by consultants and/or internally as part of Apache's comprehensive investigation and/or root cause investigation into the Varanus Island ruptures of 3 June 2008.
•The current schedule and timing for completion of Apache's comprehensive investigation and/or root cause investigation into the Varanus Island ruptures of 3 June 2008.
On 20 May 2009, the Apache companies' solicitors wrote to the respondents' solicitors, relevantly, as follows:
4.You have asked for my clients to indicate the steps which they contend should be taken by the Inspectors before delivering any report to the State Minister. In light of the terms of reference, my clients contend that natural justice and procedural fairness would require that:
(i)the draft of any report be provided to my clients before that draft is provided to the Minister;
(ii)my clients be afforded a reasonable opportunity to review and comment on the report; and
(iii)those comments be taken into account prior to the final Investigation Report being delivered to the Minister.
5.My request is not an unreasonable one in all the circumstances. My clients simply wish confirmation that Messrs Bills and Agostini will provide my clients with an opportunity to comment on the Investigation Report or draft Investigation Report prior to submission of that report or draft report to the Minister. How long Messrs Bills and Agostini will require to review my clients' response is a matter for them to determine once they have seen the comments, but it is not likely to impose an unmanageable burden upon them and would, in my opinion, make for a better report.
By letter dated 20 May 2009, the respondents' solicitors informed the Apache companies' solicitors, as follows:
The State maintains its view that the provision of a report by State inspectors to the State Minister does not carry with it any obligation to accord procedural fairness to any party. However, that is not to deny that it may be desirable for the State or the inspectors to choose to seek your clients' comments on a draft report before it is finalised and submitted to the State Minister.
As I noted in my previous correspondence, no report of the continued investigation announced by the State Minister on 7 May 2009 has yet been prepared. Until there is a draft report in existence, the State is not in a position to decide whether that report is appropriately provided to your clients for comment prior to its submission to the State Minister.
However, in order to avoid unnecessary litigation, the State is prepared to undertake to give your clients five working days notice of any intention to submit any report of that investigation to the Minister without first seeking comment from your client. That will give your clients the opportunity to seek curial relief prior to the submission of the report to the State Minister if they think fit.
In the meantime, the State is interested in hearing and understanding your clients' views as to the matters which are the subject of the investigation prior [sic] the drafting of the report. To that end the State invites your clients:
(a)to make relevant officers and employees of your client available for interview by State inspectors; and
(b)to make available to the State any of its own finalised analysis of the causes of the Varanus Island incident on 3 June 2008.
If your client wishes to take that opportunity to make its position known to the investigation, please let me know.
On 21 May 2009, the solicitors for the joint Commonwealth/State inquiry informed the Apache companies' solicitors that their client did not consider that its consent was required in order to enable the Apache companies to comply with the s 63 notice sent by Mr Bills to Apache Northwest's legal counsel on 18 May 2009. See [73] above. The Inquiry's solicitors added, however, that to the extent any release might be necessary, the Inquiry released the Apache companies from their undertaking.
By letter dated 22 May 2009, the respondents' solicitors invited Mr Bills to withdraw the s 63 notice enclosed with his letter dated 18 May 2009.
A letter dated 26 May 2009 from Mr Bills to Apache Northwest's legal counsel required Apache Northwest to produce the following information pursuant to s 63 of the Act:
•Plans and documentation in relation to the original cathodic protection systems in place for the 12" and 16" Sales Gas Lines onshore Varanus Island shore crossing prior to the events of 3 June 2008.
•Plans and documentation in relation to the cathodic protection systems installed or reinstalled following the rebuild of the Varanus Island onshore pipelines after 3 June 2008.
By letter dated 28 May 2009, the respondents' solicitors replied, relevantly, to the Apache companies' solicitor's letter dated 22 May 2009 to Mr Bills (which dealt with Mr Bills' letter of 18 May 2009):
I understand that the document, which is the subject of the letter dated 18 May 2009 from Mr Bills, sets out your client's views in relation to the incident at Varanus Island on 3 June 2008. It is surprising that your client does not wish that material to be available for the investigation.
Nevertheless, in light of your objection and notwithstanding Mr Bills does not concede that he cannot require the document to be produced pursuant to s 63 of the Petroleum Pipelines Act 1969 ('the Act'), Mr Bills does not require your client to produce the document at this stage if it does not wish those views to be available to the investigation.
On 29 May 2009, the Apache companies' solicitors wrote to the respondents' solicitors. They noted that Mr Bills did not now require the Apache companies to produce the document sought in his letter dated 18 May 2009. The document was not produced.
By letter dated 2 June 2009, the Apache companies' solicitors wrote to the respondents' solicitors in connection with the s 63 notice contained in Mr Bills' letter dated 19 May 2009, which sought, amongst other things, the 'draft documents produced by consultants and/or internally as part of Apache's comprehensive investigation and/or root cause investigation into the Varanus Island ruptures of 3 June 2008'. The Apache companies' solicitors asserted:
The terms of that notice are unclear, but my client understands it seeks production of any draft of its comprehensive root cause investigation report, such an investigation having previously been referred to by my client. As my client has previously advised, that report, which has been sought from an external consultant, has not been completed and its completion will not be determined according to artificial deadlines.
By three letters dated 3 June 2009, Mr Bills served s 63 notices on Apache Northwest.
The first letter required production of:
•Plans and documentation in relation to the original cathodic protection systems in place for the 12" and 16" Sales Gas Lines onshore Varanus Island and at the Varanus Island shore crossing prior to the events of 3 June 2009, specifically:
- Drawing no C5224-13
- Drawing no C5224-14
- Drawing no D847402.
The second letter required production of:
•In relation to the comprehensive root cause investigation report that was stated to still be incomplete as at 2 June 2009
- a copy of the service contract with the external consultant and any amendments
- copies of letters and email correspondence between Apache and the external consultant including any attachments.
The third letter required production of:
•Database entries in Inspection Manager Enterprise recording findings of the 'Varanus Island Ultra Shallow Water and Onshore Pipeline Inspection' carried out in 2004 by Netlink Inspection Services specifically relating to the 12" Sales Gas Pipeline ‑ Varanus Island onshore.
•Document entitled 'Phase 2 Examination of a Pipe Section ‑ Ex Varanus Island Facility ‑ Identification; 12‑SBC-N' (71 pages).
•Document entitled 'Phase 2 Examination of a Pipe Section ‑ Ex Varanus Island Facility ‑ Identification; 12‑SBC-S' (14 pages).
•Document entitled 'Phase 2 Examination of a Pipe Section ‑ Ex Varanus Island Facility ‑ Identification; 12‑SBC-5A' (108 pages).
•Document entitled 'Sales 12" Gas Line ‑ Pipeline Schematic ‑ Drawing No APACHE SP-20-DL-001 ‑ Rev 2' (1 page).
•Document entitled 'Sales 12" Gas Line ‑ Pipeline Schematic ‑ Drawing No SP-20-DL-001 ‑ Rev 3' (1 page).
•Document entitled 'Sales-12" Gas Line ‑ Pipeline Schematic ‑ Drawing No SP-20-DL-001 ‑ Rev 4' (1 page).
•Document entitled 'Application of Corrosion Growth and Analysis in Support of Direct Assessment Reassessment Intervals' (18 pages).
•Document entitled 'Uhlig's Corrosion Handbook' (8 pages).
•Document entitled 'Corrosion of Metals in Marine Environments' (85 pages).
•Document entitled 'Analysis of Pipeline Steel Corrosion Data From NBS (NIST) Studies conducted between 1922‑1940 and Relevance to Pipeline Management' (75 pages).
•Document entitled 'Standard - Recommended Practice - Pipeline External Corrosion ‑ Direct Assessment Reassessment Methodology' (57 pages).
By letter dated 4 June 2009, Mr Bills issued another s 63 notice to Apache Northwest requiring production of:
•Plans and documentation in relation to the original cathodic protection systems in place for the 12" and 16" Sales Gas Lines onshore Varanus Island and at the Varanus Island shore crossing prior to the events of 3 June 2008, specifically:
-      Document entitled 'Offshore Cathodic Protection ‑ Design' (44 pages).
-      Document entitled 'Pipeline Design Basis' (45 pages).
-      Document entitled 'Harriet Gas Project ‑ Specification No: SP-00-SX-023 ‑ Concrete Coating and Anode Attachment' (46 pages).
-      Document entitled 'Harriet Gas Project - Specification No: SP-00-SX-019 ‑ Anode Supply' (17 pages).
-      Document entitled 'Cathodic Protection System ‑ For - Hadson Energy Ltd - Harriet Gas - Subsea Pipelines Project' (42 pages).
-      Document entitled 'Cathodic Protection System for: 324mm DD Subsea Pipelines ‑ Applicable Spec No 39‑1‑27-019-K Rev B' (7 pages).
-      Document entitled 'Dimetal IIIA Aluminium Alloy Anode ‑ Material Composition' (3 pages).
-      Letter from K Binns to D Macey dated 3 April 1991 (4 pages).
-      Facsimile from M Coney to S Bingham dated 1 June 1991 (1 page).
-      Document entitled 'Harriet Gas Project - Pipelines ‑ Project Data Book - Installation and Commissioning ‑ Issued by: McDermott - Volume 2' (657 pages).
-      Document entitled 'Harriet Gas Project - Pipelines - Project Data Book - Materials Traceability and Certification - Issued by: Bredero Price - Volume 4' (489 pages).
On 18 June 2009, the respondents' solicitors wrote to the Apache companies' solicitors. The letter stated, relevantly:
(a)the Apache companies had not participated in the continued investigation in a constructive manner;
(b)as a result of this and in view of the Minister's desire to examine the Final Investigation Report as soon as possible, the DMP did not propose to provide the Apache companies with a copy of the Final Investigation Report before it was delivered to the Minister;
(c)the Minister intended, once he had received the Final Investigation Report and subject to his being satisfied that its contents did not make it inappropriate for him to do so, to provide the Apache companies with a copy of the Final Investigation Report and an opportunity to provide comment or submissions in relation to any matters in it; and
(d)the DMP intended to provide the Final Investigation Report to the Minister on 26 June 2009.
By letter dated 19 June 2009, the Apache companies' solicitors responded to the letter dated 18 June 2009. The responsive letter:
(a)rejected the assertion that the Apache companies had not participated in the continued investigation in a constructive manner;
(b)set out, in support of that contention, various steps said to have been taken by the Apache companies;
(c)said it was assumed the Final Investigation Report was in existence and contained findings or other material adverse to the Apache companies' interests; and
(d)said the Apache companies should be afforded procedural fairness.
The letter dated 19 June 2009 requested the State to re‑consider its decision not to provide the Apache companies with a copy of the Final Investigation Report before it was delivered to the Minister. The letter stated that legal proceedings would be commenced unless a satisfactory response was received by 5.00 pm on 22 June 2009. No response or, at least, no response satisfactory to the Apache companies was received by this time.

The Apache companies commence the primary proceedings

On 23 June 2009, the Apache companies commenced the primary proceedings, being Supreme Court action CIV 2154 of 2009. They sought declarations and injunctions restraining Mr Agostini, Mr Bills and the State from providing the Final Investigation Report to the Minister.
Also, on 23 June 2009, the Apache companies filed an application for an interlocutory injunction. On 25 June 2009, at the hearing of the application, Mr Agostini, Mr Bills and the State undertook to the court that they would not provide the Final Investigation Report to the Minister before 31 July 2009. The Supreme Court action was listed for trial on 29 July 2009. At the trial, the undertaking was extended pending judgment in the action.

The pleadings in the primary proceedings

The critical pleas, for the purposes of this appeal, in the final version of the Apache companies' statement of claim are in pars 12 ‑ 20, which (without the supporting particulars) read:
12The Plaintiffs [the Apache companies] have interests founding a duty in the First Defendants [Mr Agostini and Mr Bills] and the Second Defendant [the State] to afford to the Plaintiffs a reasonable opportunity to be heard in relation to the Investigation Report before the First Defendants and the Second Defendant complete the Investigation Report or provide the Investigation Report to the Third Defendant [the Minister].
13From 13 May 2009, the Plaintiffs requested the First Defendants and the Second Defendant to accord to the Plaintiffs procedural fairness and natural justice and in particular to provide the Investigation Report to the Plaintiffs to review and comment upon before it was completed by the First Defendants and the Second Defendant and provided by the First Defendants and the Second Defendant to the Third Defendant.
14On 27 May 2009, the Executive Director Petroleum and Environment issued a prosecution notice to Apache Northwest and two others alleging an offence under s 38(b) of the Act regarding the Varanus Island Incident, that on 3 June 2008, being the registered holders of licence PL12 granted under the Act authorising the construction and operation of a pipeline, Apache Northwest failed to maintain the pipeline, the subject of licence PL12, in good condition and repair in that the 12" Sales Gas pipeline was corroded from a nominal wall thickness of 11.1 mm down to a wall thickness of 3-4 mm in the area of the pipeline rupture which occurred at the pipeline beach crossing on Varanus Island on 3 June 2008.
15The matters the subject of the prosecution notice are or include matters which the Third Defendant has engaged the First Defendants and the Second Defendant to investigate and report upon.
16The Investigation Report contains findings or other materials which adversely affect the Plaintiffs' interests or are capable of adversely affecting the Plaintiffs' interests pleaded in paragraph 12 above (the Adverse Contents).
17The First Defendants and the Second Defendant have not given and intend not to give the Plaintiffs an opportunity to make submissions in relation to any of the Adverse Contents of the Investigation Report before providing that Report to the Third Defendant.
18In formulating and including the Adverse Contents in the Investigation Report, the First Defendants relied on materials obtained from parties other than the Plaintiffs.
19In refusing to provide the Plaintiffs with any or any reasonable opportunity to be heard in relation to the Adverse Contents prior to completing the Investigation Report or prior to providing it to the Third Defendant, the First Defendants and the Second Defendant have denied to the Plaintiffs procedural fairness.
20As at 8 May 2009, the Third Defendant intended to release to the public the Investigation Report after it had been provided to him.
At trial, the allegation in par 13 of the statement of claim was confined to the provision of the Adverse Contents instead of the whole of the Final Investigation Report.
The respondents' defence (without the supporting particulars) to the allegations in pars 12 ‑ 20 of the statement of claim reads:
5.As to paragraph 12 of the Amended Statement of Claim the Defendants:
(a)deny that the First Defendants and Second Defendant have a duty to afford the Plaintiffs a reasonable opportunity to be heard in relation to the Investigation Report before the First Defendants and Second Defendant complete the Investigation Report or provide the Investigation Report to the Third Defendant;
(b)say that the First and Second Defendants did afford the Plaintiffs a reasonable opportunity to be heard in relation to the Investigation Report before they completed the Investigation Report, which the Plaintiffs did not take up; and
(c)otherwise admit the paragraph.
6.The Defendants admit paragraphs 13-14 of the Amended Statement of Claim.
7.The Defendants admit paragraph 15 of the Amended Statement of Claim but do not admit that the prosecution will deal with all of the matters referred to in the particulars to that paragraph.
8.The Defendants admit paragraph 16 of the Amended Statement of Claim.
9.As to paragraph 17 of the Amended Statement of Claim the Defendants:
(a)admit that the First Defendants and Second Defendant did not provide the Plaintiffs with a copy of the Investigation Report, or disclose any of the contents of that Report to the Plaintiffs, prior to its completion;
(b)admit that the Second Defendant has refused to provide the Plaintiffs with a copy of the Investigation Report, or disclose any of the contents of that Report to the Plaintiffs, prior to providing it to the Third Defendant;
(c)repeat paragraph 5(b) of this Defence; and
(d)otherwise deny the paragraph.
10.The Defendants admit paragraph 18 of the Amended Statement of Claim.
11.The Defendants repeat paragraph 9 of this Defence and otherwise deny paragraph 19 of the Amended Statement of Claim.
12.The Defendants deny each and every allegation of fact in paragraphs 20-23 of the Statement of Claim and say that the Third Defendant at all material times intended, and intends, to decide what action to take in relation to the Investigation Report once it is provided to him and he is appraised of its contents.

In the circumstances, the Apache companies were given a reasonable opportunity to put relevant information or material before Mr Agostini and Mr Bills and to make submissions on the issues that were likely to affect their rights or interests. They failed to avail themselves of this opportunity. It is apparent that the Apache companies, by their solicitors, made a tactical decision that, in terms of procedural fairness, they would accept nothing less than the provision to them of a draft of the Final Investigation Report before its delivery to the Minister, a reasonable opportunity to review and comment on the draft, and the taking into account of their comments before the completion and provision of the Final Investigation Report to the Minister. The rules of procedural fairness did not require the delivery of a draft of the Final Investigation Report to the Apache companies, at least in circumstances where they had not sought to make (and, indeed, had resisted making) their views known to Mr Agostini and Mr Bills on the relevant terms of reference.
The Apache companies alleged in par 18 of the final version of their statement of claim that in formulating and including the Adverse Contents in the Final Investigation Report, Mr Agostini and Mr Bills relied on 'materials obtained from parties other than [the Apache companies]'. This allegation was admitted by the respondents in par 10 of the final version of their defence.
During the trial before the primary judge, the following exchange occurred between his Honour and counsel for the Apache companies:
BEECH J: The plaintiffs do not claim entitlement to have disclosed to them the third party information and deal with its source, nature and reliability, do they?‑‑Rather the plaintiffs' claim is to be entitled in respect of adverse conclusions ‑ ‑ ‑
ROBERTSON, MR: Adverse contents.
BEECH J: Adverse contents I should say.
ROBERTSON, MR: Yes, that's so. What form the adverse contents presently take or how the plaintiffs should be given the opportunity is a matter that in our submission doesn't presently arise but ‑ I am just trying to find the paragraph that your Honour was last referring to. I think your Honour said paragraph 39 of the reply submissions?
BEECH J: Yes.
ROBERTSON, MR: Yes, if I can perhaps put your Honour's question this way, are the plaintiffs asserting separately, that is, in addition to the opportunity to contest the adverse contents insofar as relied on [third] party material ‑ are the plaintiffs asserting a right apart from that to know the source, nature and reliability? The answer is no.
BEECH J: But not as an additional right, no.
ROBERTSON, MR: That's right.
BEECH J: But it might be thought to be a lesser right. I'm not ‑ tend to submit is a possible additional right. In any case, that is not the plaintiffs' case.
ROBERTSON, MR: No.
BEECH J: The plaintiffs' case is, 'We're entitled to know the adverse contents and then have an opportunity to respond in relation to it.'
ROBERTSON, MR: Exactly, yes, and that's, as I earlier submitted, the basic, that is, the no frills version of audi alteram partem, that is, the opportunity to be heard, and at the point we are at now, never mind the separate identification of issues to be addressed, and so on, because we now know all that is crystallised in the adverse contents ‑ and it's common ground of course that there are some and there are two characters, adverse contents at large, as it were, and adverse contents in reliance on third party information (ts 108 ‑ 109).
There was a further exchange between the primary judge and counsel for the Apache companies in the course of counsel's reply at the trial:
ROBERTSON, MR: I was concerned to hear my learned friend, if I heard him correctly, say that the plaintiff disclaim any reliance on third party material. I thought I had spent some time yesterday explaining how in another context one would say, 'Tell us what the issues are and then we can respond to them,' but there, as it were, the caravan had moved on.
We know that there is a report, we know that it contains adverse contents, and therefore, as I put it yesterday, the adverse contents, whether third party or not, have crystallised what might otherwise be the identification of the issues. So we don't disclaim reliance on both aspects of the adverse contents and ‑ ‑ ‑
HIS HONOUR: I think what Mr Mitchell was saying was that the plaintiff does not claim in its pleading and has not claimed by submission that the respect in which it was denied procedural fairness was that it was not provided with any adverse third party information. Rather, the claim is, 'We have not been given the adverse contents, and been given an opportunity to respond.'
ROBERTSON, MR: Yes, Well, your Honour, my respectful submission is there is no difference between the former and the latter in the context of this case. We do complain that we haven't been given the third party adverse contents. Adverse contents are just a shorthand description for the contents which adversely or capable of adversely affecting the plaintiff's interests. So I don't accept that there's any point to be made that somehow that means that the plaintiffs have abandoned reliance on the lack of an opportunity to be heard in relation to third party material.
The third party material has crystallised into a third party adverse contents, which are of the nature that's admitted on the pleadings. It was put this way, as I understood it by my learned friend; that is, there was no practical unfairness in giving a party an opportunity to influence the formation of conclusions but not the conclusions themselves. Here the point that we have got to because we have been denied procedural fairness is that we do have these conclusions, which we have described as the adverse contents (ts 196 ‑ 197).
The Apache companies did not allege, in the final version of their statement of claim, that they were entitled to be informed of adverse material obtained by Mr Agostini and Mr Bills from third parties before the Final Investigation Report was completed and provided to the Minister. Similarly, the Apache companies' pleaded case was not that they were entitled to be informed of the critical issues raised by material from third parties that was before Mr Agostini and Mr Bills. Rather, what the Apache companies pleaded was an entitlement to be provided with proposed findings and conclusions in the Final Investigation Report (including findings and conclusions based on materials obtained from third parties) that adversely affected or potentially adversely affected the Apache companies' interests and, at that point, to have an opportunity to attack or correct the findings made or conclusions reached by Mr Agostini and Mr Bills.
In my opinion, there is no merit in the complaint made by the Apache companies in relation to the third party material. First, as I have mentioned, the Apache companies did not take up the opportunity to participate in the final State investigation. If they had participated by accepting the invitation of the State (and, necessarily, Mr Agostini and Mr Bills) to make their views known about the relevant terms of reference, their participation would probably have resulted in the provision of, and would, in any event, have given rise to an entitlement to be provided with, adverse material in the possession of Mr Agostini and Mr Bills (including material obtained from third parties) that was credible, relevant and significant to the final stage of the investigation (to the extent that the material was unknown to the Apache companies). Secondly, the Apache companies did not run their case at trial on the basis that Mr Agostini and Mr Bills were in possession of material obtained from third parties, of which the Apache companies were unaware, that was credible, relevant and significant to the final State investigation and, therefore, the Apache companies should have been provided with a copy of that material or, at least, informed of its substance. If the Apache companies had run their case at trial on this basis, factual issues would have become relevant; in particular, whether the material obtained from the third parties was credible, relevant and significant and, if so, whether it was material of which the Apache companies were unaware. If these factual issues were not admitted on the pleadings, then some evidence would, no doubt, have been adduced and it would have been necessary for the primary judge to have made findings in relation to the factual issues. None of this occurred. The primary judge's analysis of the pleadings on this point [168] ‑ [170] was, with respect, correct.
I am satisfied that Mr Agostini and Mr Bills were not obliged, in the circumstances, to give the Apache companies a reasonable opportunity to make submissions on the Adverse Contents before the Final Investigation Report was completed and provided to the Minister. As I have mentioned, ordinarily, a decision‑maker is not required to disclose to a person to whom procedural fairness must be accorded the decision‑maker's mental processes, provisional views or proposed conclusions before a final decision is made. Similarly, the decision‑maker is not, ordinarily, obliged to send to a person to whom procedural fairness must be accorded, a draft of a report by the decision‑maker which contains proposed findings adverse to the interests of the person, for the purpose of enabling him or her to make comments or submissions on those proposed findings. These points were rightly appreciated by the primary judge [152].
The opinions I have expressed as to the failure of the Apache companies to make out their argument that Mr Agostini and Mr Bills breached their obligation to accord procedural fairness apply with necessary modifications to the alleged breach by the State. It is unnecessary to consider separately the State's position.

Grounds 5 and 6 of the appeal: conclusion

Grounds 5 and 6 of the appeal fail.

Ground (a) of the notice of contention: the respondents' submissions

The respondents contend that a requirement that officers in DMP accord procedural fairness before communicating their views to the Minister would be inconsistent with the principle of responsible government implicit in the State's constitutional structure.
According to counsel this contention was the subject of submissions made on behalf of the respondents at trial, but the contention was not referred to or dealt with by the primary judge.
Before this court, counsel for the respondents again made submissions on this point. Counsel submitted that an important element of this principle is the individual responsibility of a Minister of State to the Parliament for the administration of his or her department. See FAI Insurances, 364. Counsel submitted that the principle of responsible government necessarily entails communication between government departments and responsible Ministers, and the giving of advice by the departments to the Ministers. It was submitted that, in the present case, the Minister's capacity to discharge his obligation of political accountability to the Parliament and the electors of the State, under the principle of responsible government, for the administration of the DMP and the Act must depend, in part, on his having access to information held by the DMP. The Minister, in making decisions under the Act, will be treated as having constructive knowledge of information acquired by the DMP in the course of the administration of the Act. See Bushell v Environment Secretary [1981] AC 75, 95 (Lord Diplock); Minister for Aboriginal Affairs v Peko‑Wallsend, 66 (Brennan J, Deane J agreeing). According to counsel, it would be inconsistent with the principle of responsible government if the DMP's capacity to pass information to the Minister were to be subject to an obligation to accord procedural fairness to persons who are the subject of adverse comment.

Ground (a) of the notice of contention: its merits

In my opinion, there is no substance in ground (a) of the notice of contention in the particular facts and circumstances of the present case.
My finding that Mr Agostini and Mr Bills were obliged to accord procedural fairness to the Apache companies was arrived at by applying the applicable legal principles to the particular facts and circumstances of the present case. It does not follow from this finding, or the reasoning which underpins it, that procedural fairness must be accorded whenever any officers of a department of State convey their views on an issue to their Minister, if the views or any information which accompanies them may affect adversely the rights or interests of a particular person or entity. See my observations at [204] above.
The meaning of the phrase 'responsible government' and its attributes in the context of the State constitutional structure in New South Wales were considered by Allsop P in Stewart [34] ‑ [37]. It is unnecessary, in this appeal, to carry out a review of the system of responsible government which exists in Western Australia.

Ground (b) of the notice of contention: the respondents' submissions

Ground (b) of the notice of contention asserts that the Minister would not be under an obligation to accord procedural fairness to the Apache companies before publishing the Final Investigation Report and, in consequence, there is no basis for a conclusion that the completion of the Final Investigation Report by Mr Agostini and Mr Bills and its provision to the Minister would attract an obligation to accord procedural fairness to the Apache companies by reason of the potential effect on their reputations.
The primary judge concluded that any decision to publish generally the Final Investigation Report would attract a duty of procedural fairness. The reason for this conclusion was that the preparation of the Final Investigation Report involved the exercise of a public power, or was done in the exercise of a public duty, and the publication of the Final Investigation Report would be liable to affect adversely the Apache companies' reputation [111] ‑ [112].
Counsel for the respondents submitted that the primary judge erred in that respect. It was submitted that publication generally of the Final Investigation Report would not give rise to a duty to accord procedural fairness to the Apache companies and, therefore, there is no reason why such a duty would arise on the provision of the Final Investigation Report to the Minister.
Counsel for the respondents submitted that, absent a clear legislative intention to the contrary, the duty to accord procedural fairness in the making of administrative decisions attaches to decisions made in the exercise of a statutory power which affects rights, interests and legitimate expectations. Counsel then acknowledged, however, that some cases have recognised that the rules of procedural fairness condition the exercise of some kinds of non‑statutory or prerogative power. Reference was made to Council of Civil Service Unions and Minister for the Arts, Heritage and Environment v Peko‑Wallsend. Counsel then said that the Apache companies had found 'only two Australian cases' (namely, Cornwall and Master Builders' Association) where the potential for a non‑statutory publication to affect reputation was held to give rise to a duty to accord procedural fairness.
According to counsel for the respondents, in both Cornwall and Master Builders' Association, a substantial purpose of the preparation and publication of the relevant report was to affect the interests of the persons or entities the subject of the report and the relevant exercise of 'power'. Counsel asserted that these authorities do not support the proposition that there is a duty to accord procedural fairness in all cases where, in the exercise of a non‑statutory power, a public official publishes information which may affect the reputation of a person or entity. Counsel added that if, contrary to his submission, Cornwall and Master Builders' Association do support this proposition, as the primary judge thought [102], [110] ‑ [112], this court should not follow Cornwall or Master Builders' Association.
Counsel for the respondents argued that it would impose a significant impediment to communication by public officials with members of the public if any statement which might have an adverse impact on a person's reputation was sufficient to attract an obligation to accord procedural fairness. Counsel added that reputation is generally and adequately protected by the law of defamation, which balances this interest against the need for freedom of communication about Government matters. See Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.
According to counsel for the respondents, a non‑statutory publication has no legal effect, in the sense of producing an effect upon rights or obligations. Counsel contended that 'the difficulty' with the approach of the courts in Cornwall and Master Builders' Association is that they establish the requirements of procedural fairness as an independent common law obligation, rather than a condition for the validity of administrative action.
Finally, counsel for the respondents submitted that, in the present case, publication generally of the Final Investigation Report would not involve the exercise of any capacity which an ordinary person does not possess. The preparation of the Final Investigation Report did not involve, and its publication would not involve, the exercise of any statutory power. In the circumstances, the fact that the publication generally of the Final Investigation Report may have an adverse effect on the reputation of the Apache companies is not sufficient, so it was submitted, to make the requirements of procedural fairness applicable to that publication.

Ground (b) of the notice of contention: its merits

It is unnecessary to decide whether the Minister would be under an obligation to accord procedural fairness to the Apache companies before publishing the Final Investigation Report. For the reasons I have given, Mr Agostini and Mr Bills were obliged, to the extent I have mentioned, to accord procedural fairness. See [227] above.
In Council of Civil Service Unions, Master Builders' Association and Cornwall, procedural fairness was required in relation to the exercise of prerogative powers. See [135] ‑ [140] above. I respectfully agree with those authorities to the extent they decided that a decision‑maker or investigator who is acting pursuant to the exercise by a Minister of State of prerogative powers may be required, depending on the circumstances, to accord procedural fairness to a person whose rights or interests may be affected adversely by the decision or investigation in question. I would, in any event, be bound to follow Master Builders' Association and Cornwall on this point unless convinced they were plainly wrong. See Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135] (Gleeson CJ, Gummow, Callinan, Heydon & Crennan JJ). It is unnecessary to consider, with respect, the correctness of Master Builders' Association and Cornwall in any other respect.
As I have mentioned, it does not follow, from my decision that Mr Agostini and Mr Bills were obliged to accord procedural fairness to the Apache companies, or the reasoning on which my decision is based, that before an officer of a department can say anything to his or her Minister which may be adverse to a person regulated by legislation administered by the Minister and the department, the person affected must receive procedural fairness. See [204] above. The law of procedural fairness, in the context of decision‑making and investigations pursuant to the exercise by Ministers of State of prerogative powers, is able to co‑exist with, and is not a significant impediment to, communication by public officials with members of the public.

In the present case, the final State investigation, as constituted by the Minister, involved the exercise of a capacity which an ordinary person does not possess. As I have mentioned, an integral feature of the final State investigation was the Minister's appointment of each of Mr Agostini and Mr Bills as an inspector pursuant to the power conferred by s 62 of the Act. The powers in s 63(1), which were exercisable by Mr Agostini and Mr Bills by virtue of their appointment as inspectors, and the consequent obligations imposed on the Apache companies under s 63(2), were essential to efficacy of the final State investigation. See [185] above.
Ground (b) of the notice of contention is without merit.

Result of the appeal

For the reasons I have given, grounds 1 ‑ 4 of the appeal have been made out, but grounds 5 and 6 fail. The failure of the Apache companies to make out grounds 5 and 6 is fatal. The appeal should be dismissed.