Austar Plumbing Services Pty Ltd (ACN 091 391 301) v Sydney Water Corporation (ABN 49 776 225 038)

[2018] NSWSC 864

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Austar Plumbing Services Pty Ltd (ACN 091 391 301) v Sydney Water Corporation (ABN 49 776 225 038) [2018] NSWSC 864

Hearing dates:

8, 12 & 13 February 2018

Date of orders:

03 August 2018

Decision date:

03 August 2018

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Summons dismissed. Plaintiff ordered to pay the defendant’s costs subject to any application for a special costs order. Leave granted to seek consequential relief.

Catchwords:

ADMINISTRATIVE LAW – judicial review of decision of the defendant – defendant is a public authority supplying water and disposing of waste water in the Sydney Metropolitan area – defendant decides to de-list the plaintiff as a listed provider of services to the defendant’s infrastructure – decision preceded by show cause notice issued by defendant to plaintiff – plaintiff responded to show cause notice – decision then made delisting the plaintiff – whether the defendant’s decision to de-list was unreasonable – whether the defendant’s decision was affected by actual or apprehended bias – whether defendant failed to take into account relevant considerations in making the decision.

 

CONTRACT – formation of contract – whether plaintiff’s listing as one of defendant’s service providers arises under a contract between the plaintiff and the defendant in the form either of an “Overarching Agreement” or certain “Developer Works Deeds” – whether an email from Sydney Water on 15 May 2012 constituted an offer which Austar subsequently accepted

  CONTRACT – implied duty of good faith – whether in making the decision the defendant was subject to and breached an implied duty of good faith and fair dealing owed to the plaintiff.

Legislation Cited:

Government Information (Public Access) Act 2009
Interpretation Act 1987, s 47
Sydney Water Act 1994, s 5(3)
State Owned Corporations Act 1989
Uniform Civil Procedure Rules 2005, Part 59, rule 9

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336
Bushell v Environment Secretary [1981] AC 75
Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
Jones v Dunkel (1959) 101 CLR 298
Kamm v State of New South Wales (No. 4) [2017] NSWCA 189
L & Anor v State of South Australia [2017] SASCFC 133
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
R v Panel on Take-Overs and Mergers, ex parte Datafin Plc [1987] 1 QB 815

Texts Cited:

JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, 2014, LexisNexis Butterworths) [21-460]

Category:

Principal judgment

Parties:

Plaintiff: Austar Plumbing Services (ACN 091 391 301)
Defendant: Sydney Water Corporation (ABN 49 776 225 038)

Representation:

Counsel:

 

Plaintiff: F. Corsaro SC; D. Byrne
Defendant: N.L. Sharp SC; D.E.Z. Birch

 

Solicitor:

  Plaintiff: Mr Mema Fahd, Memcorp Lawyers
Defendant: Dr Ashley Tsacalos, Clayton Utz

File Number(s):

2017/388179

Publication restriction:

No

Judgment

1. Sydney Water Corporation (“Sydney Water”) is the incorporated public authority supplying water, managing water use and disposing of waste water in the Sydney metropolitan area. From 25 July 2003 until 29 November 2017, Austar Plumbing Services Pty Ltd (“Austar”) was on Sydney Water’s list of authorised providers of services to maintain, alter or repair Sydney Water’s water supply, wastewater disposal and other operating infrastructure.

2. Following a number of warnings and incidents involving Austar’s work on Sydney Water’s infrastructure in 2015, 2016 and 2017, Sydney Water initiated a show cause procedure with a view to it determining whether or not to remove Austar from its list of providers. The show cause procedure cited several alleged repeated safety, quality and environmental breaches. After receiving Austar’s final response to the show cause procedure, Sydney Water decided on 29 November 2017 to remove Austar from its list of providers (“the 29 November 2017 decision” or “the decision”).

3. The 29 November 2017 decision means that Austar is no longer eligible to be retained by developers to construct, extend, connect with, execute protection works, or otherwise effect alterations to Sydney Water infrastructure.

4. Austar seeks to set Sydney Water’s 29 November 2017 decision aside. Its claim is two-fold. First, it brings a claim based in contract. Austar contends that Sydney Water’s capacity to delist a provider such as Austar is subject to an implied contractual term to act honestly, reasonably and fairly, a term which Austar says Sydney Water breached in making the decision. But the parties are at issue as to whether a contractual relationship founding such a duty exists between Sydney Water and Austar at all. Austar submits it has two types of agreement with Sydney Water that source the duty that Austar says Sydney Water has breached.

5. But Sydney Water disputes that Austar has any type of contract with Sydney Water. Sydney Water submits its power to list or to delist Austar from its list of authorised providers of services does not arise under any contractual arrangement. Rather, Sydney Water says that its power to delist is an administrative discretion exercisable under its statutory powers. In the alternative, Sydney Water contends that it is not in breach of any contractual duty that the Court may find it owes to Austar.

6. Second, Austar seeks judicial review of the 29 November 2017 decision. Sydney Water concedes that the decision is an exercise of public power and is amenable to judicial review. Austar challenges the decision on several judicial review grounds. Austar contends that Sydney Water’s 29 November 2017 decision: (1) was affected by actual and/or apprehended bias; (2) was unreasonable; and (3) and failed to take into account relevant considerations; and (4) was procedurally unfair.

7. Austar commenced these proceedings by summons on 22 December 2017 and obtained expedition. Following the decision, Sydney Water permitted Austar to continue some ongoing work for which it had already been engaged. The bulk of that work was expected to be completed by late January – early February 2018. Austar said that after that time it would no longer be able to undertake new construction works for projects that required it to be one of Sydney Water’s listed providers.

8. Austar’s evidence on its application for expedition was that, unless the decision was overturned, Austar may soon have to retrench some of its full-time employees. During the hearing, the urgency of Austar’s situation appeared to be more nuanced, as many of the employees in question had other work opportunities with companies related to Austar.

9. Austar’s Summons seeks the following relief:

1. a declaration that the decision is amenable to judicial review;

2. a declaration that Sydney Water had a duty or obligation to deal fairly with Austar in making the 29 November 2017 decision arising out of:

1. the exercise by Sydney Water of its statutory and public powers; or

2. one or more contracts involving Sydney Water and Austar as parties to developments works;

3. a declaration that in making the decision, Sydney Water failed in its duty or obligation to deal fairly with Austar;

4. alternatively, a declaration that the decision was not made on the basis of rational evidence, or alternatively was unreasonable;

5. orders quashing the decision and reinstating Austar onto the list;

6. further or alternatively, a mandatory injunction requiring Sydney Water to reinstate Austar as a listed accredited provider and publish that fact to relevant parties; and

7. in the alternative to the mandatory injunction, damages for breach of contract.

10. These proceedings first came into the duty list during the vacation period before Black J, who delivered an ex tempore judgment on 5 January 2018. The matter was then managed by Robb J and Ward CJ in Eq in the Duty List. Although the proceedings were initially set down for a one day hearing, ultimately the range and extent of the submissions put meant that they ran over three days on 8, 12 and 13 February 2018.

11. The proceedings were efficiently conducted on both sides. The additional hearing days were largely a function of the emerging complexity of the issues and the material before the Court. Mr F Corsaro SC and Mr D Byrne of counsel appeared for the plaintiff, instructed by Mr Mema Fahd of Memcorp Lawyers. Ms N Sharp SC and Mr D Birch of counsel appeared for the defendant, instructed by Dr Ashley Tsacalos of Clayton Utz.

12. The Court’s findings and conclusions in these reasons are divided into the following five parts: (a) The Relationship of Sydney Water and Austar – 2003 to 2013; (b) Did Sydney Water Owe Austar Contractual Duties of Good Faith?; (c) Austar’s Conduct and Sydney Water’s Delisting Decision – 2013 to 2017; (d) Austar’s Claim in Contract; and (e) Austar’s Claim for Judicial Review.

(A) The Relationship of Sydney Water and Austar – 2003 to 2013

13. The following is a narrative of the relevant facts leading to the 29 November 2017 decision. That narrative is constructed in two parts. The first part sets out the contractual framework said to govern the relationship between Austar and Sydney Water. This is followed by the Court’s conclusions about that contractual framework.

14. The second part of the factual narrative then deals with the particular events that led to Austar’s delisting. Much of that history is an uncontentious account of what passed between Austar and Sydney Water prior to and during the show cause process between October and December 2017.

15. Each part of this narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded.

Sydney Water’s Functions and Service Providers

16. Sydney Water is a state owned corporation, wholly owned by the New South Wales Government. It is constituted by Sydney Water Act 1994, s 4 and the State Owned Corporations Act 1989. Sydney Water’s functions include ensuring that it operates and maintains all the water, wastewater, recycled water and storm water infrastructure it owns within its area of operations in a responsible and efficient manner. A more detailed analysis of the functions the Sydney Water Act confers on Sydney Water appears later in these reasons.

17. The sub-division or development of land in the Sydney metropolitan area not uncommonly affects Sydney Water’s infrastructure. Subdivision or development may require a developer to construct, extend, connect to, alter or take steps to protect Sydney Water’s infrastructure. The developer must obtain the approval of Sydney Water before it effects any of those various works. Sydney Water imposes conditions of approval that the developer in question must only use providers to carry out such works who have been listed by Sydney Water.

18. Development affecting Sydney Water infrastructure is governed by Sydney Water Act, Division 9 – Development. Under that Division, Sydney Water issues a compliance certificate in relation to a particular development, certifying that its requirements under that Division have been complied with (s 70). Compliance certificates are generally issued to developers.

19. Developers may apply for (s 72) and may be granted (s 73) compliance certificates which may impose conditions of approval with respect to particular land within Sydney Water’s area of operations (s 71). Sydney Water may give notice of particular requirements before granting a compliance certificate (s 74) and may make the grant conditional on the carrying out of those specified conditions which may include making an agreement. The Division also requires Local Government and other consent authorities to keep Sydney Water informed of development applications that may affect its infrastructure (s 78).

20. Sydney Water does not assume responsibility for the quality of the services of listed service providers. Sydney Water warns on its website that the developer/builder should engage the listed provider. Sydney Water makes clear that it does not endorse any of the products or services offered by the listed provider. Listing allows the listed provider to represent to developers that it is authorised to undertake work on Sydney Water infrastructure and then to do such work.

21. Sydney Water submits in these proceedings that it is authorised to maintain this list of providers by virtue of Sydney Water Act, s 5(3). This provision permits Sydney Water to “conduct any business or activity” that “it considers will further its objectives”.

22. Sydney Water presently maintains seven separate lists of providers. These lists group service providers according to the different kinds of services they provide in relation to Sydney Water’s infrastructure. The seven lists cover the following groups of services: (a) Constructors (major works); (b) Constructors (minor works); (c) Designers; (d) Field testers; (e) Service protection reporters; (f) Water service connection drillers; and (g) Water servicing coordinators.

23. Up until the 29 November 2017 decision, Austar appeared on four of those lists: the lists of Constructors (major works), Constructors (minor works), Water service connection drillers and Service protection reporters.

24. Austar’s listing permitted it to provide a wide range of services. Listed Constructors (minor works) are, as their name implies, permitted to engage in minor sewer works and install junctions and sidelines up to 12 metres. Listed Constructors (major works) are permitted to work on more complicated matters, which are specified on Sydney Water’s website.

25. Where a developer is building close to Sydney Water infrastructure and Sydney Water requires steps be taken to protect its assets (for example, by encasing a sewer pipe), a water servicing coordinator (a listed provider) may have to be engaged. Austar’s listing as a water service connection driller and a service protection reporter may require it to be engaged to work on Sydney Water infrastructure in related circumstances. The precise functions of these additional listings are not of significance to the issues in these proceedings.

Pre-2012 Contract-Based Listing Arrangements

26. Austar was incorporated as Hy-Star Plumbing Services Pty Ltd (“Hy-Star”) in January 2001. In July 2003, Hy-Star first became a Sydney Water accredited supplier. Sydney Water issued Hy-Star with a Certificate of Listing to record its accreditation as a supplier.

27. It is not disputed that prior to 1 July 2012, Sydney Water did accredit its providers through a contract-based system called the Asset Creation Developer Process (“ACDP”). The ACDP was defined as:

“The process that extends from the lodgement of the Section 73 Certificate Application to the issue of a Section 73 Compliance Certificate. ACDP also includes SWC’s process to issue requirements in regard to the Adjustment or Deviation of its infrastructure. This may include the construction of works.”

28. Before 1 July 2012, Austar’s arrangements with Sydney Water moved through three stages. The first agreement structure to which Austar and Sydney Water were parties, in the period from Austar’s initial accreditation in 2003 until mid-2006, was an Asset Creation Supplier Agreement (“Supplier Agreement”). The second form of agreement to which Austar and Sydney Water were parties from around mid-2005 until mid-2009 was an Asset Creation Developer Supplier Agreement (“Developer Suppliers Agreement”). And the third agreement structure, used from mid-2009 until 30 June 2012, was a Developer Infrastructure Provider Agreement (“DIPA”).

29. On 4 August 2003, Hy-Star entered into a Supplier Agreement with Austar. On 12 October 2005, Sydney Water issued Hy-Star with a Certificate of Listing under that system. On 19 December 2006, Sydney Water issued Austar with another Certificate of Listing.

30. On 20 April 2009, Sydney Water wrote to Austar advising that the existing Supplier Agreement was due to expire on 30 June 2009 and foreshadowed that Austar would in the future become known and listed as a Developer Infrastructure Provider, and that it would supply services pursuant to a DIPA. Austar was offered an opportunity to enter into a DIPA.

31. On 9 June 2009, Austar’s principal, Mr Elias Matouk, signed a Notice of Extension to the Supplier Agreement on behalf of Austar.

32. On 10 August 2009, Austar’s principal, Mr Elias Matouk, on behalf of Austar executed the DIPA with Sydney Water which was due to terminate on 30 June 2011 unless Sydney Water determined to extend it by a further year.

33. On 12 May 2011, Sydney Water wrote to Austar advising that it had determined to extend the DIPA until 30 June 2012. On 7 June, Mr Matouk executed a Notice of Extension to DIPA.

The New Regime Listing Arrangements from 12 July 2012

34. On 15 May 2012, Mr John Perry of Sydney Water sent Sydney Water’s listed providers, including Austar, an email (“the 15 May email”) about the forthcoming expiry of their DIPA agreements with Sydney Water, after which time Sydney Water would no longer accredit providers.

35. The 15 May email announced that Sydney Water’s arrangements with its listed providers and developers would change fundamentally on 1 July 2012. Austar contends that this email was an offer which it accepted, creating a contract that governed Sydney Water’s duties when considering the possible delisting of Austar. The 15 May email provided as follows (emphasis original):

“Hello Providers

Expiry of the Developer Infrastructure Provider Agreement (DIPA)

On the 3rd May 2012 Sydney Water held an extraordinary EQC meeting and advised your representatives that the DIPA (your agreement with Sydney Water) will expire on 30th June 2012. Please see the attached presentation that we used to describe the changes and the new arrangements to operate from 1st July 2012.

From 1st July 2012

Sydney Water will not accredit providers and will not be renewing the DIPA with its existing 214 listed Providers.

We will continue to list all existing Providers only. No new Providers will be assessed for listing until further notice. Only currently listed Providers will be allowed to sign the Developer Works Deed and design and construct developer works.

Existing providers will maintain their current company capability status which will be shown on the list. The names of Key Personnel will be removed from the list. Existing Providers wanting to change their company capability status will need to follow the current procedure.

Existing Providers will be responsible to ensure their company meets Sydney Water’s criteria for the various levels and types of developer works. This includes the appropriate training for company Key personnel. The criteria will be posted on Sydney Water’s website. The Provider will give the WSC written confirmation via a Provider Capability Checklist for the relevant category of work and that they have key personnel who meet the criteria for the specified developer works.

The Developer Works Deed

This deed has been designed to replace the DIPA as the basis for the legal relationship between the provider and Sydney Water. It will contain or refer to the obligations and responsibilities of Providers. The deed will refer to the existing Provider’s Instructions which are being amended to support the new arrangements. The Developer and WSC will also sign the deed.

We will send you a copy of the Developer Works Deed, your new Instructions and Mandatory Provider Criteria as soon as possible prior to the 1st July.

If you have any questions please contact myself on Tel: [phone] or Craig Simmons on 88493431.

John Perry.”

36. The 15 May email is critical to Austar’s argument for reasons which will be explained below.

36. Two weeks after the 15 May email, Mr Perry sent another email to the listed providers on 28 May 2012 (“the 28 May email”) which set out what each Provider would need to do before each new job from 1 July 2012 onwards as follows (emphasis original):

“What you will have to do before each new Job from 1st July 2012.

1.   For each Job, Check you meet Sydney Water’s criteria

Your company must be on Sydney Waters [sic] list. Before each job you must use Sydney Water’s Mandatory Criteria for Providers to determine if you have the right Key Personnel and meet the other necessary requirements to carry out any specified Developer works in Sydney Waters [sic] process. A draft copy of the criteria is attached for you to read. The Criteria will be posted on Sydney Waters [sic] web site prior to 1st July 2012.

2.   Complete a Provider Capability Checklist

This is a new form (please see the draft copy attached) that you will fill out and give to the WSC, for each job, to certify to the WSC and Sydney Water that you have the Key Personnel with the right capabilities and training (as per the criteria in item 1. above) to perform the specified developer works. The WSC will also use that form to certify that he has checked your capabilities. He may ask you for documented evidence.

3.   Sign the Developer Works Deed

Please find attached a draft copy of the Developer Works Deed that you must sign, for each job, before you undertake any Developer Works. It is very important that you read and understand the Deed. The Deed contains many of the requirements of the DIPA and includes some new information. The WSC will give you the Deed to sign before each job and will help you with any questions.

4.   Construct the works as per your Provider Instructions

Your Provider Instructions have also been changed to reflect the new arrangements. The draft copy attached shows the changes in red.”

38. The Sydney Water criteria that Austar and other listed providers would need to meet were described as the “Mandatory Criteria”, which were published on Sydney Water’s website. They are as follows:

“To maintain your listing as our provider, you must continue to meet the following criteria (and any other criteria we may apply).

You must:

h   Have current Third Part certification by an independent JAS/ANZ registered certification company to AS/NZS ISO 9001 of a documented Quality Management System (QMS) that includes processes to address our requirements for a Product Specific Quality Plan (PSQP). The QMS must address all warranties, activities and services that relate to the provider.

h    Demonstrate an ability to plan and implement safety and environmental requirements

h   Show satisfactory ongoing performance after periodic reviews by us

h   Maintain appropriately trained key personnel

h   Complete a minimum of two jobs each year

h   Have appropriate and current insurances for the category your company is listed for

h   Conform to our codes, instructions, Developer Works Deed (Standard Terms) and Business Ethics guide

h   Ensure your company is not in voluntary administration, receivership or similar.”

39. The Developer Works Deed (“DWD”) that Austar and other listed providers would need to sign before each new job is a project-specific agreement. But Sydney Water says that a DWD is not necessarily executed in all cases where Austar is retained by a builder or developer as a Sydney Water listed provider. But it seems not in contest that Austar will be a party to many DWDs at any one time.

40. On 25 June 2012, Mr Perry emailed providers and said that a Water Servicing Coordinator (“WSC”) would be required to certify that the provider seeking to work on a particular project was listed and met the mandatory criteria. The WSC was also required to sign a “Provider Capability Checklist”.

41. On around 3 October 2013, Mr Elie Hannoun acquired all the shares in Austar and became its sole director.

(B) Did Sydney Water Owe Austar Contractual Duties of Good Faith?

42. The parties contest whether Sydney Water’s decision to delist Austar is governed by contract. Austar claims Sydney Water’s decision was made under a contract. Sydney Water, on the other hand, says that its new service provider listing arrangements effective from 1 July 2012 are not grounded in contract.

43. The parties’ contentions about whether the 29 November 2017 decision was made under a contract relate to one central question: whether, in making the decision, Sydney Water owed Austar a contractual duty of good faith. Austar claims, and Sydney Water disputes, that Sydney Water owes Austar any contractual duties of good faith in making the 29 March 2017 decision. The issue of whether Sydney Water breached any applicable contractual duty of good faith when making the decision is considered later in these reasons.

44. Sydney Water submits that Austar’s listing as a Sydney Water listed provider does not arise out of a contractual arrangement between the parties but rather that the listing (and delisting) are authorised under Sydney Water’s statutory discretion conferred by Sydney Water Act, s 5(3), and that Sydney Water’s removal of Austar’s listing was done under the authority of that statutory discretion, and not the result of any action taken under a DWD or any overarching contract.

45. Austar contends that it and Sydney Water are parties to two types of agreements that found its contention that Sydney Water owes it a contractual duty of good faith in making the decision: (1) an “overarching agreement”; and (2) project specific contracts in the form of the DWDs.

46. Austar first submits that the 15 May email, which identified the new regime, was an offer to listed service providers such as Austar, which Austar accepted by subsequently entering into DWDs; and that the parties provided consideration by way of mutual promises.

47. Sydney Water says that by 12 July 2012, it had terminated any contractual relationship with Austar and had moved to a new legal basis in dealing with all its service providers, using DWDs for individual projects. But Sydney Water says that there is no overarching contract.

48. A DWD is a document relating to a specific job. There are also minor works agreements. If Austar signs a DWD for a particular project, it does not also need to execute a minor works agreement. And the reverse is also applicable: if Austar signs a minor works agreement in relation to a particular project, it will not also execute a DWD.

49. In my view, there is no “overarching agreement”. It can be accepted that if the 15 May email is an offer, that it may be accepted by Austar entering into DWDs. But in my view, it was not an offer capable of acceptance by Austar. It was merely giving information that the current DIPA regime would come to an end and that the contract based accreditation system would be dissolved. It makes no suggestion of renewing any contract other than the DWD that would be created as the basis for the future legal relationship between the provider and Sydney Water.

50. The Court has not found it necessary to go further in analysing the parties’ submissions about the contract issue because the Court is prepared to assume against Sydney Water for the purposes of argument that it was subject to a contractual duty of the kind alleged, that was based in the DWDs. In my view, any such duty has not been breached in this case.

(C) Austar’s Conduct and Sydney Water’s Delisting Decision – 2013 to 2017

Corrective Action Requests (“CARs”)

51. Since Mr Hannoun became the sole director of Austar in October 2013, Austar has received 47 Corrective Action Requests (“CARs”) in respect of its performance. Sydney Water contends that many of these related to serious safety or quality issues. Austar concedes that some of them related to serious safety or quality issues but says that those issues have been addressed in each case.

Sydney Water Issues Written Warnings to Austar

52. Austar received five written warnings from Sydney Water in relation to its performance between 15 December 2015 and 17 May 2017. Austar received a written warning on each of the following occasions: 15 December 2015, 26 May 2016, 14 October 2016, 30 March 2017, and 17 May 2017. Austar was warned on these occasions that if it failed to satisfy the mandatory criteria, it risked having its listing suspended or terminated.

53. The First Warning – 15 December 2015. The first of those written warnings was communicated to Austar in the form of an email from Mr Perry to Mr Hannoun on 15 December 2015. The warning related to Austar’s failure to comply with minimum third party accreditation conditions.

54. The Second Warning – 26 May 2016. The second warning, which was given in relation to Austar’s unsatisfactory performance, was sent by email from Mr Perry to Mr Hannoun on 26 May 2016. It stated, amongst other things, the following:

“Listed providers are required to show satisfactory ongoing performance after periodic reviews by Sydney Water. A recent review of your company’s performance over the last year has revealed that your company needs to significantly improve its performance on Sydney Water Developer Projects. I refer in particular to the unsatisfactory work done by your company for case #147514 at 11 George St Yagoona.

Final Warning

I will be advising our Asset Inspection Services team manager to closely monitor all Developer cases where Austar Pty Ltd is the nominated constructor. Any breaches of Sydney Water’s standards and instructions will be reported to the Urban Growth assurance team who will investigate, and if necessary take further action including removal of your company from Sydney Water’s list.”

55. The Third Warning – 14 October 2016. The third warning was communicated by email from Mr Perry to Mr Hannoun on 14 October 2016. That email was sent in relation to all CARs issued against Austar and Sydney Water’s monitoring of Austar’s performance. Mr Perry wrote:

“Sydney Water relies on its listed Providers to ensure its developer customers have access to competent providers who will deliver quality assets fit for purpose to Sydney Water.

Sydney Water will continue to closely monitor your company’s performance until the end of 2016 at which time a further review will determine your company’s suitability to remain on its list of providers.”

56. Mr Hannoun replied to that email on 17 October 2016 in the following terms:

“As we all [k]now, Austar’s performance in the past few months has not been all that good, I can openly admit this.

I have had several discussions and meeting with our team and also shown them all the email you have sent so they understand that it’s not a “bluff”.

You will notice our performance change over the next few projects to no faults found what so ever [sic]. We will show you how good our workmanship can be and it will stay that way.”

57. The Fourth Warning – 30 March 2017. The fourth warning, sent by letter from Wayne Jackson of Sydney Water (Manager – Commercial Funding and Frameworks) to Mr Hannoun on 30 March 2017, related to Sydney Water’s decision to suspend Austar’s listing following the Warwick Farm incident, to which these reasons will come below.

58. The Fifth Warning – 17 May 2017. And the fifth warning, by letter from Wayne Jackson to Mr Hannoun, was sent on 17 May 2017 in relation to Sydney Water’s decision to lift Austar’s suspension subject to certain conditions. It went on to remind Austar that Sydney Water would “continue to monitor Austar Plumbing’s performance with particular emphasis on quality and safety.”

The Austar Incidents

59. Despite Mr Hannoun’s assurances in October 2016 that Austar’s safety and workmanship would improve in the future, a number of incidents involving Austar occurred between February and July 2017.

60. The First Incident – 23 February 2017. The first was on 23 February 2017 at Warwick Farm (“the Warwick farm incident”). Austar’s Warwick Farm job commenced in late 2015. On 15 December 2015, the Warwick Farm DWD was executed. And on 4 April 2016, Austar extended a Warwick Farm Deed Poll. On 23 February 2017, an inspector attended Warwick Farm to conduct a random audit. During the visit, the inspector observed: raw sewage flowing onto the ground; that an accredited person was not on site; that no traffic control was in place; and that there was no site-specific paperwork on site. On 29 March 2017, Sydney Water says it issued a CAR to Austar in relation to the Warwick Farm Incident.

61. The next day, on 30 March 2017, Sydney Water suspended Austar under the Warwick Farm DWD in relation to the Warwick Farm incident. That letter stated:

“Dear Hannoun,

We refer to Correction Action Requests (CARs) raised against Austar Plumbing Services Pty Ltd (Austar Plumbing) in relation to construction works carried out at 4-6 Brown Pde Warwick Farm (Sydney Water Case Number 150475WW). These were

106377: Environmental Management Plan, raw sewerage to environment

106378 & 106379: Personnel not accredited

106380: Environmental Management Plan – traffic control

106381: Incorrect paperwork

106382: Concrete encasement backfill.

This letter is a notice pursuant to Clause C 5.3 of the Developer Works Deed (see Schedule 1. Standard Terms) between the Austar Plumbing and Sydney Water Corporation. The reasons contained in your response to the CARs have been reviewed and are not considered to adequately demonstrate that appropriate actions have been undertaken by your company to ensure that similar instances do not occur in the future.

Following our investigation, we believe the root cause of the issues experienced in relation to this case and other recent CARs against Austar Plumbing are systemic procedural issues in Austar Plumbing’s operations. While we understand that Austar Plumbing has engaged a specialist provider to assist it with rectifying its quality systems and processes, we have no alternative other than to suspend the Austar Plumbing accreditation as a constructor and driller until we are satisfied that the revised systems and processes are in place and operational.

Suspension

For the reasons set out above, and pursuant to clause C 5.3 of the Developer Works Deed, Sydney Water Corporation suspends the listing of Austar Plumbing until the later of 30 April 2017, or until such a time where Austar Pluming can clearly demonstrate to Sydney Water that it has operational systems and processes in place to ensure further breeches [sic] will not occur.

You may complete any current developer works in progress. Note that from the close of business on 31 March 2017 and until the suspension is lifted and the listing restored, Austar Plumbing will not be able to tender for new developer works or commence any Sydney Water Developer projects that were previously tendered for and awarded during the suspension period.

Prior to the suspension being lifted and the listing restored, you will need to provide evidence to us to clearly show that Austar Plumbing has revised systems and processes in place to ensure that further breeches [sic] of Constructor Obligations under our standard Developer Works Deed do not occur. This would include but not be limited to;

h   Revised Quality System and certification

h   Revised Environmental System and certification

h   Revised Safety System and certification

h   Appropriately trained staff and an ongoing training program to perform provider works

h   Evidence of revised businesses processes in place

Sydney Water will assess the performance of Austar Plumbing for the period during the suspension and may, at its absolute discretion, advise any additional action required or change to the suspension duration or termination of the Providers listing.

Termination

If your company’s performance fails to improve over this period or following any future lifting of this suspension, Sydney Water will consider removing Austar Plumbing from its list of Providers.”

62. The Second Incident – 7 April 2017. The second incident occurred on 7 April 2017 (“the Regents Park/Auburn incident”). On that day, Austar executed a Minor Works Agreement for work at 13 George Young Street, Regents Park/Auburn. During work on 13 George Young Street, a 6 metre section of a 40 metre long trench collapsed, injuring an Austar employee who had to be sent to hospital. That collapse also resulted in wastewater discharging onto the site. The SafeWork NSW inspector who attended the site issued notices to Austar.

63. On 17 May 2017, Sydney Water lifted Austar’s suspension subject to certain conditions and warned that it would continue to monitor Austar’s performance, with particular emphasis on quality and safety.

64. The Third Incident – 24 July 2017. The third incident occurred on 24 July 2017 at the 79 Yarran Road, Oatley site (“the Oatley incident”). Prior to that incident, on 7 July, Austar executed a Provider Capability checklist for the Oatley site. That project involved the subdivision of one lot into two and involved the construction of a sewer and main to meter service and connection to existing Sydney Water infrastructure. Upon arrival at the Oatley site, SafeWork NSW identified a number of breaches and occupational health and safety issues including the failure to bench and shore an excavation trench. Austar contests that what happened in this incident was a breach. SafeWork NSW issued a Prohibition Notice to Austar requiring it to cease work on site immediately. In Mr Hannoun’s evidence about this incident, he accepted that a SafeWork inspector came to the site and issued a Prohibition Order requiring Austar to stop work immediately on the site. But Mr Hannoun did not accept that this was on the basis there was a risk to health and safety of the person involved in the incident. Mr Hannoun’s evidence was that the Prohibition Order had been issued not due to the risk of safety to a person but due to the trench excavation itself. He maintained that there was “nobody at risk” in relation to this incident.

65. On 4 August 2017, Mr Wayne Jackson from Sydney Water emailed Mr Hannoun and advised him that Sydney Water considered the Oatley incident as serious and warranting investigation. Mr Jackson suggested convening a meeting. On 14 August 2017, representatives from Sydney Water and Austar, and their solicitors, met in relation to the Oatley incident. Details of this correspondence are referred to in more detail later in these reasons.

The Show Cause Notice – 4 October 2017

66. On 4 October 2017, Sydney Water issued a show cause notice to Austar. The show cause notice set out Sydney Water’s concerns as follows:

“Sydney Water has serious concerns that not only is there a history of repeated failures by Austar to maintain the mandatory criteria, there is a history of Austar repeatedly failing on quality, safety and environmental matters, some which are substantially similar in nature.

Further, that despite Austar making representations and promises to Sydney Water each time that there is a failure by Austar to maintain the mandatory criteria that Austar will be changing its procedures to ensure that it will “improve in all ways its processes, show Sydney Water how it will improve and will not repeat what has happened”, it does not appear to Sydney Water that those changes make a difference.

…

Sydney Water is also seriously concerned by the large number of CARs that have been issued to Austar over the last 2 years and is particularly concerned that in 2017 there has, to date, on three different work sites, CARs or incidents which show that Austar is not maintaining the mandatory criteria as required by Austar as a Listed Provider…”.

67. The show cause notice then went on to invite Austar to explain in writing, by 3 November 2017, any reasons Austar had to advance as to why Sydney Water should not remove Austar’s listing as a Listed Provider. Particular aspects of this show cause notice are referred to later in these reasons.

Austar’s Response to the Show Cause Notice – 9 November 2017

68. After being granted a short extension, Austar responded to the show cause notice on 9 November 2017. Austar submitted a 19 page written response accompanied by many pages of supporting documentation. This became Exhibit B in the proceedings. Aspects of Austar’s response to the show cause notice are dealt with later in these reasons. But the text of the first part of Austar’s response is important for a number of the later arguments. It was as follows:

“1.   This submission is drafted for and on behalf of Austar Plumbing Services Pty Ltd ("Austar") in response to the Show Cause Notice dated 4 October 2017 ("Show Cause Notice").

2.   The Show Cause Notice notes Sydney Water Corporation ("SWC") alleges Austar has, not demonstrated an ability to plan and implement safety and environmental requirements, does not show satisfactory, ongoing performance after periodic reviews by Sydney Water and does not conform to SWS codes, instructions, Developer Works Deed (Standard Terms) and Business Ethics Guide.

3.   The Show Cause Notice requests further, that Austar to include any documents, or notices it has received from SafeWork NSW, confirming that all investigations are closed, and no further action will be taken against Austar in relation to the Auburn Site ("the Auburn Site") and the Oatley Site ("the Oatley Site").

4.   This Submission in response to the Show Cause Notice will confirm the following:

(a)   That Austar concedes there have been issues in the past with implementing Safety and Environmental requirements.

(b)   However, that it has developed practices and internal policies, including updating and increasing quality assurance of its Safe Work Method Statements, Training, Environmental and Incident Emergency Plan, that has and will continue to minimise to the greatest extent, the possibility of any breaches.

(c)   That it has maintained accreditation and training and sought to improve those areas.

(d)   That it concedes the significance of the CARS directions and in particular, the seriousness of the Auburn Site safety issues and Oatley Site potential safety issues.

(e)   That it has complied with all directions, corrective actions and legal requirements put in place by SafeWork NSW in relation to the Auburn Site and Oatley Site.

(f)   That it has maintained contact and moral support and offered light work duties to the injured worker at the Auburn Site.

(g)   That the Sydney Water Coordinator from the Auburn Site, Jude Latimer of Australian Water Project Management has provided a reference confirming that since the incident, they have completed approximately 20 jobs with Austar and confirmed Austar are compliant with safety awareness and construction methodology has improved, and they have noticed new practices have been implemented with respect to the safety and induction processes.

(h)   That certain allegations of incorrect backfilling made against Austar with respect to Warwick Farm Site ("Warwick Farm Site") were due to the Builder, HCM conceding that it in fact backfilled the driveway not Austar.

(i)   That it has complied with all notices from Safework NSW and taken corrective action to satisfy their Prohibition and Improvement Notices.

(j)   That is has taken active steps to engage a full time Traffic Control Manager to be employed on a full-time basis with Austar, to monitor and ensure Austar employees are compliant with the Safe Work Method Statement and in particular, to ensure traffic control issues on site are addressed and proper traffic management controls are implemented.

(k)   That it has purchased equipment that will significantly eliminate the risk of collapsed trenches.

(I)   That it has ensured staff undergo further training and safety courses in first aid and other safety courses.

(m)   That it has maintained its accreditation with ISO 9001.

(n)   That its principal, Elie Hannoun, is a fit and proper person to manage Austar and be a principal of a company that is on Sydney Water list of Providers of Constructor.

(o)   That its peers in the industry have realised improvements to safety adherence and construction methodology.

5.   Further, that moving forward, Austar is able to:

(a)   Demonstrate an ability to plan and implement safety and environmental requirements.

(b)   Show satisfactory, ongoing performance after periodic reviews by Sydney Water'.

(c)   Conform to SWS codes, instructions, Developer Works Deed (Standard Terms) and Business Ethics Guide.

6.   That Austar should not be suspended for the past shortcomings, but rather be permitted to remain on the List of Providers, provided that:

(a)   Austar comply with any direction of Sydney Water to participate in any course that Sydney Water recommends.

(b)   Continue to notify Sydney Water Inspection Team by email, at least 2 days prior to undertaking any work whatsoever.

(c)   Continue to be monitored by Wayne Jackson and his team in Sydney Water, with respect to its implementation of Safe Work Method Statements and any other practices Sydney Water wish to monitor.

(d)   Any other condition Wayne Jackson and Sydney Water see fit.”

69. Paragraph 5 sets out the particular mandatory criteria on which Sydney Water was relying in its show cause notice.

Sydney Water’s Recommendation to De-list Austar – 27 November 2017

70. On 27 November 2017, a recommendation for the cancellation of Austar’s listing was prepared by Mr Jackson, who is Sydney Water’s Manager Commercial & Funding Frameworks, (the “Recommendation”) and was approved by Ms Catherine Port, the Head of Development & Infrastructure Portfolio Services. The Recommendation, which was tendered in an un-redacted form following an express waiver of any claim of client legal privilege by Sydney Water, and which became Exhibit 13 in the proceedings, provided as follows:

“For approval                  [Sydney Water logo]

Sydney Water ref

Cancellation Notice to Austar Plumbing ABN 22091391301 – Listed Provider

Austar Plumbing Services Pty Ltd ABN 22091391301 (Austar) is a listed constructor for developer works with a history of repeated failures on quality, safety and environmental matters. On 4 October 2017, we issued Austar with a ‘show cause’ notice as to why we should not remove Austar’s listed as a Listed Provider. After extensive review and consideration of Austar’s response we recommend that Austar’s listing as Listed Provider, be removed.

Issue

Austar Plumbing Services Pty Ltd ABN 22091391301 is a Sydney Water listed provider (constructor and driller) for developer works. Following numerous failures of quality, environmental and safety matters, we requested that Austar ‘show cause’ as to why we should not remove them from Sydney Water’s listed providers for developer works.

In response, Austar submitted a 19 page written response together with a number of supporting documents (Austar’s Response).

Austar’s Response, and previous responses provided by Austar, were extensively reviewed by Sydney Water, including a representative from our safety team, to form a view on whether Austar should be removed from being a Sydney Water listed provider.

Recommendation

We recommend that Austar Plumbing be removed as a Sydney Water listed provider under Delegation 484(d). Our legal team was engaged and have [sic] drafted a letter setting out Sydney Water’s decision to remove Austar’s listing as a Listed Provider. As Austar engaged lawyers to act on its behalf with instructions that all future correspondence between SydneyWater and Austar be sent to them, the notice is addressed to Austar’s lawyers (see Attachment 1).

Prepared by:

[signed]

Wayne Jackson

Manager Commercial & Funding Frameworks   27 November 2017

1.   Approved under Delegation 484(d) by:   2.   For information:

[signed]                  [signed]

Catherine Port

Head of Development & Infrastructure

Portfolio Services”

71. There was incidental argument about whether the waiver of privilege over this document opened up other otherwise privileged communications for examination. But that issue was resolved.

The Delisting Decision – 29 November 2017

72. And on 29 November 2017, Sydney Water advised Austar by letter from Mr Jackson that it would be de-listed. Sydney Water’s letter to Austar’s solicitors was in the following terms:

“Dear Sirs

We confirm that you act for Austar Plumbing Services Pty Ltd (Austar) in relation to the above matter.

After giving serious consideration to Austar’s response to the Notice to Show Cause issued by Sydney Water dated 4 October 2017, including all supporting documents, Sydney Water has determined that it will now take steps to immediately remove, from Sydney Water’s website, Austar’s listing as a Listed Provider because of Austar’s failure to maintain the mandatory criteria of a Listed Provider.

Sydney Water will notify all WSCs and any parties to a Developer Works Deed, of which Austar is a party, that Austar is no longer a Listed Provider. Each developer can then decide whether or not to continue with Austar or engage another Listed Provider.

As a consequence of Austar ceasing to be a Listed Provider, please ensure that your client takes immediate steps to remove from its advertising materials, including its website, any references to being a Sydney Water Listed Provider.

Yours sincerely,

[signed]

Wayne Jackson

Manager Commercial & Funding Frameworks”

73. Mr Jackson personally signed this letter.

(D) Austar’s Claim in Contract

74. The Court’s earlier findings are that there was no overarching contract between Sydney Water and Austar after July 2012 but the Court is prepared to assume against Sydney Water that it is under a contractual duty of good faith arising out of DWDs. The issue now is whether it was breached.

Did Sydney Water Breach an Implied Duty of Good Faith?

75. Austar submits that the following matters indicate that Sydney Water failed to deal honestly, reasonably and fairly with Austar in making the decision. These reasons deal first with the way that Austar put its case as a breach of an implied duty of good faith in its written submission, followed by the way the case was elaborated in oral submissions. In my view, neither case is made out.

76. Austar’s main breach of contract allegations, taken from its own written submissions, were as follows:

1. Sydney Water made the 29 November 2017 decision to terminate Austar’s listing on 26 July 2017, some 70 days prior to issuing the show cause notice and some four months before the defendant issued its decision (Austar also submits that this amounts to a finding of bias);

2. Notwithstanding that the show cause notice and the Statement of Reasons suggest that the primary reason for the decision was based on a lack of confidence that Austar would safely execute future projects, Sydney Water permitted Austar to complete 12 jobs after the decision was issued on 29 November 2017;

3. Despite making an assertion to the contrary in the Statement of Reasons (which Austar submits should not be accepted), the decision was based in part on an incorrect assertion that a trench had collapsed at the plaintiff’s Oatley worksite; and

4. In making the decision, the defendant relied on a purported failure of Austar to provide documents confirming that SafeWork NSW had closed its investigation in circumstances where Sydney Water knew that the investigation would not be completed (with the effect that the documents would not be available) by the time required for Austar to respond to the show cause notice.

77. Austar’s written submissions then proceed to summarise its case as follows: Sydney Water placed undue reliance on the number of CARs issued notwithstanding that many related to minor issues. For example, CARs were issued for having to reschedule a post-inspection meeting and having the wrong sized plans.

78. Austar further submits that in making the decision, Sydney Water relied on incidents that had already occurred at the time when it had agreed to end a temporary suspension of Austar's listing.

79. Austar also notes that the Statement of Reasons was issued on 19 January 2018.  That is 4 weeks after Austar commenced proceedings and 7 weeks after Sydney Water made the decision.  The Statement of Reasons was only issued in response to an order made by the Court.  In such circumstances, Austar submits that it was prepared for the purpose of defeating Austar’s claim.

80. Austar contends that Sydney Water breached a contractual duty of good faith by failing to deal “honestly, reasonably, and fairly” with Austar actual bias and showed an actual lack of good faith in the decision making process.

81. In my view, these arguments fail at several levels. The whole of Austar’s contract case is dealt with later in these reasons under the heading “Was the Decision Effected by Actual or Apprehended Bias”. Much of the same analysis decides both Austar’s contractual case and administrative review case.

(E) Austar’s Claim for Judicial Review

Is the Decision Amenable to Judicial Review?

82. An Exercise of Public Power. The parties ultimately did not dispute that the 29 November 2017 decision to de-list Austar was amenable to judicial review. But reflecting their earlier dispute about whether or not their relationship was contractual, they differed as to the avenue that led to judicial review.

83. Austar contended that the 29 November 2017 decision, although not made pursuant to an exercise of statutory power or made pursuant to the exercise of the prerogative powers of government is, according to the principles stated in R v Panel on Take-Overs and Mergers, ex parte Datafin Plc [1987] 1 QB 815 (“Datafin”), nevertheless a decision of sufficiently public character that it may come within the Court’s judicial review jurisdiction.

84. In answer, Sydney Water focuses on its own legislation. It says that the decisions to list and to de-list Austar are a pure exercise of its statutory power under Sydney Water Act, s 5(3) and that it is reviewable on that basis. The listing of Austar was its appointment to a position. Sydney Water says that the power to so appoint includes the power to revoke the appointment: Interpretation Act 1987, s 47.

85. But Sydney Water accepts the premise to Austar’s argument: that even if the decision was not based in statute, that it would nevertheless qualify as an exercise of public power and therefore it follows that Sydney Water does not dispute that the decision is amenable to judicial review. The basis on which judicial review of the decision is available is perhaps now only of academic interest and need not be considered further in these reasons.

86. Impact on Plaintiff’s Financial Interests. But there is another requirement to establish that judicial review is available. An administrative act must not only be an exercise of public power but must also affect a right, obligation, interest or privilege: L & Anor v State of South Australia [2017] SASCFC 133 per Kourakis CJ at [155]. Austar advances evidence of the alleged serious financial consequences that it will suffer as a result of the decision made by the defendant. In particular, since the decision was made on 29 November 2017, Mr Hannoun says that it has already suffered a monetary loss of $713,650 worth of lost contracts and will continue to incur overhead costs of between $130,000 and $220,000 per month in various expenses.

87. Mr Hannoun was cross-examined about these figures. Ultimately they may not be quite as high as this. Mr Hannoun gave evidence during the hearing that he understood that 95% of Austar’s work required it to be a Sydney Water listed provider. Although he conceded in cross-examination that Austar’s listing was not in itself a guarantee that Austar would obtain work on Sydney Water infrastructure, he said that Austar has “always had ongoing work from developers”. But it was not in contest that the financial consequences of the delisting on Austar would be substantial.

88. The parties then had two preliminary contests about the decision before judicial review could commence: (1) who was the decision maker; and (2) what were the decision maker’s reasons. These preliminary questions need to be resolved before the Court can determine the principal challenges to the decision on the grounds of bias, unreasonableness and that relevant considerations were not taken into account, or procedural fairness not afforded.

Who Was the Decision Maker?

89. The parties also contest whether within Sydney Water Mr Jackson or Ms Port was the decision maker. If the Court finds that Mr Jackson made the 29 November 2017 decision, the Court will then need to consider whether the Recommendation prepared by Mr Jackson is evidence of prejudgment of the decision to cancel Austar’s listing. This issue makes a difference as to the availability of review on the grounds of bias by prejudgment.

90. Austar submits that the evidence establishes that the decision maker within Sydney Water was Mr Jackson, not Ms Port. Mr Jackson issued to Austar: the notice suspending Austar’s listing, the notice lifting that suspension, the show cause notice, the recommendation to Ms Port to delist Austar, and the notice to Austar notifying it that its listing had been terminated. In particular, Austar says that the Recommendation was a fait accompli because, on its face, it indicates that the decision to delist Austar had already been made at the time the Recommendation was prepared and put forward to Ms Port.

91. Austar contends this for three reasons: (a) the Recommendation does not provide Ms Port with a choice of options, but just a result; (b) the Recommendation does not enclose copies of the underlying material for Ms Port to consider, which may enable her to make a different decision; and (c) the Recommendation attaches a draft letter advising Austar that it had been de-listed, but did not attach a draft letter advising Austar of the contrary – that it would remain listed.

92. Sydney Water submits that Ms Port is the decision maker. It puts this for several reasons. And in my view its reasoning is persuasive.

93. First, Ms Port approved the Recommendation, which is headed “for approval” by signing it under Delegation 484(d) (Exhibit 12). Delegation 484(d), which is set out in the table below, provides that the power to approve the suspension or cancellation of a provider’s accreditation is only applicable to a “Head of Developer and Infrastructure Portfolio Services”.

Subject	Nature of delegation	Officer	Notes
484. Approving, suspending or cancelling accreditation to work on Sydney Water assets	(a) To approve provisional accreditation.	Level 4 Manager	Only applicable to Level 4 Managers, DIPS, LCS
	(b) To approve full accreditation.	Level 4 Manager	Only applicable to Level 4 Managers, DIPS, LCS
	(c) To approve the issue of ‘show cause’ letters to accredited parties.	Level 3 Manager	Only applicable to Head of Developer and Infrastructure Portfolio Services
	(d) To approve the suspension or cancellation of accreditation.	Level 3 Manager	Only applicable to Head of Developer and Infrastructure Portfolio Services

It is clear from the Recommendation that Ms Port holds that very position; as is evident from her signature block at the foot of the page. Mr Jackson, who is the “Manager, Commercial & Funding Frameworks”, on the other hand, did not have authority to approve the Recommendation under Delegation 484(d).

94. Second, the Recommendation is really a suggestion or proposal as to the best course of action, which can be accepted or rejected. None of the documentary material suggests that Ms Port was or felt bound to approve the Recommendation Mr Jackson had advanced, or indeed that he treated her as so bound. Ms Sharp SC described the Recommendation prepared by Mr Jackson in submissions as “clearly a briefing note” which was “styled ‘For Approval’”.

95. Third, the document is typical of briefing papers and departmental minutes seen in government agencies and business where a more junior officer (who is across the detail and has more time) makes a recommendation to a more senior officer (who has less time and less detailed knowledge) for approval. The Recommendation is not a peculiar arrangement. As a matter of practicality and efficiency in government agencies and business, junior officers often prepare recommendations, with more senior officers being responsible for the final decision. In my view, it does not follow that because Ms Port merely approved the Recommendation already prepared that Ms Port did not herself make the decision.

96. Austar’s criticism that Mr Jackson’s Recommendation does not provide Ms Port with a choice between multiple options and is therefore fait accompli is to treat a senior level decision maker as someone apparently incapable of thinking for herself. The Recommendation clearly provides for two options, removal or non-removal as a Sydney Water listed provider. But all other timing issues and other nuances were implicitly available to the intelligent decision maker that one can infer was dealing with a matter such as this. Nor is the failure to enclose copies of the underlying material, or not attaching a draft letter in case the opposite outcome was determined, any indication either of predetermination or actual bias, or even, in my view, of apprehended bias. Ms Port was always able to call for the underlying material if she did not already have it. And if she determined that Austar’s listing was to remain, preparation of the alternative form of letter would also not have been complicated. In my view, no adverse inference can be drawn from the form of the Recommendation that suggests that Ms Port was biased.

94. And finally, I accept Sydney Water’s submission that a distinction must be drawn between a person in a decision making authority with a determinative function, and a person whose involvement in the mechanics of the decision making process is not determinative: Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 at [140].

95. As Sydney Water submits, the High Court’s decision and Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 (“Hot Holdings”) holds lessons for this case. In Hot Holdings, the High Court did not accept that the Minister (the statutory decision maker) was biased simply because certain people who made recommendations to the Minister had financial interests or relatives with financial interests in the matter. Mr Jackson’s views cannot simply just be inferred as having been adopted by Ms Port without question. And there is no extraneous evidence from which it should be inferred that Ms Port just rubber stamped recommendations by Mr Jackson and gave the matter no independent consideration: Hot Holdings at 454 [45]. The detailed Statement of Reasons dated 19 January 2018 demonstrates the contrary.

96. Can the Court Draw a Jones v Dunkel Inference? Austar has asked the Court to draw a Jones v Dunkel (1959) 101 CLR 298 inference against Sydney Water for its failure to call Mr Jackson as a witness. But the Court has found that Ms Port was the decision maker, so this argument loses much of its force.

The Admissibility of the 19 January 2018 Statement of Reasons

100. On 19 January 2018, Ms Port provided a Statement of Reasons for Sydney Water’s 29 November 2017 decision. Sydney Water tendered the Statement of Reasons. Austar objected to its admission. The Court said that it would consider the admissibility of the Statement of Reasons in its final judgment. Relevant parts of the statement of reasons are summarised below, followed by consideration of its admissibility.

101. The conclusion to the Statement of Reasons was as follows:

“52.   Sydney Water has, over the last few years, seen a pattern emerge with Austar that when Austar is the recipient of a CAR or has been involved in a serious safety incident, Austar's response is to make promises and undertakings on how processes and future outcomes will improve and that Austar will hire experts to get updated management systems and procedures.

53.   Sydney Water has observed that neither of the approaches adopted by Austar have resulted in improved outcomes. Instead, Sydney Water has observed that Austar reverts to the same behaviour and mode of operation which was the subject of a CAR or cause of an incident, which then results in a further CAR or similar incident.

54. Taking into account:

(a)   the number of concessions made in Austar's Response that it has in the past failed in its safety and quality practices.

(b)   the failure by Austar to address in Austar's Response Sydney Water's request to provide documents confirming that SafeWork NSW has closed their investigations into both the Auburn and Oatley incidents.

(c)   the lack of information provided by Austar with regards to how Austar would improve its quality practices.

(d)   the number of times where, in a response to a safety incident or CAR relating to safety/quality/environmental matters, Austar has promised to improve its practices but has not done so, leading to recurring incidents,

I do not have confidence that, moving forward, Austar will improve their performance to a satisfactory level in relation to safety so as to meet and to comply with mandatory criteria for Listed Providers.

55.   On weighing up the decision whether to allow Austar to retain its listing as a Listed Provider against Sydney Water's obligations, I have determined that to allow Austar to remain as a Listed Provider would compromise Sydney Water's ability to ensure safe and quality outcomes for our developer clients, broader customer base and for Sydney Water's current and future operations.

56.   As a result of the foregoing and reasons outlined above, in accordance with Delegation 484(d) of the Sydney Water Delegation Manual, I removed Austar from the list of Listed Providers.”

102. In my view, the complete answer to Austar’s argument against the admission of the Statement of Reasons is that the Statement of Reasons was put on pursuant to the special power conferred on the Court under Uniform Civil Procedure Rules 2005, Part 59, rule 9 for public authorities to provide reasons in cases of judicial review. That is what the document purports to be, in response to Austar’s own request. In my view Austar cannot now object to it.

103. Now the preliminary decisions are resolved, the Court can address the principal issues for decision in turn:

1. Was the Decision Affected by Actual or Apprehended Bias?

2. Was the Decision Unreasonable?

3. Did Sydney Water Deny Austar Procedural Fairness?

(1) Was the Decision Affected by Actual or Apprehended Bias?

104. Austar submits that the 29 November 2017 decision was affected by both actual and apprehended bias. Sydney Water says neither form of bias is demonstrated on the available materials.

105. The test for actual bias is set out in the High Court's decision of Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17. In the joint judgment of Gleeson CJ and Gummow J (at [35]) the High Court said, in support of French J’s view at first instance, that:

“[35] … actual bias… must be a pre-existing state of mind which disables the decision-maker from undertaking or renders him unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made.”

106. The applicable test for apprehended bias was not in contest. The test for apprehended bias comes from the High Court’s decision in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63. To establish apprehended bias, unlike for actual bias, the plaintiff need only show that the fair minded and reasonably well informed observer might conclude that the decision maker did not approach the issue with an open mind. The test requires two steps, which were set out by Gleeson CJ, McHugh, Gummow and Hayne JJ at [8]:

“[8]   The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”

107. Austar’s Submissions. Austar submits that although the apparent final approval for the decision to cancel Austar’s listing, and the Statement of Reasons itself was given under the hand of Ms Port, in reality, the decision was made by Mr Wayne Jackson, Sydney Water’s Manager Commercial Funding Frameworks.

108. Austar submits it is evident from the documents produced on subpoena that the 29 November 2017 decision was grounded entirely on Mr Wayne Jackson’s written recommendation of 27 November 2017. And Austar further submits that the documentary evidence demonstrates that Mr Jackson had prejudged the cancellation of Austar's listing more than two months prior to his recommendation.

109. Austar points to Mr Jackson’s 26 July 2017 email sent to Ms Port following the incident at Austar’s worksite at Oatley. Mr Jackson’s email is as follows:

“Catherine,

A quick heads-up on a safety matter that occurred on Monday.

Workcover inspectors implemented a stop work on an Austar job involving our assets at Oatley. Issue was failure to bench or shore an excavation deeper than 1.5m and Austar were ordered to stop work and backfill the trench. No one was injured but they also damaged our assets in the process and our Network Civil team attended the site. The WSC raised the corrective action (note in one of the pictures the person walking along the excavated trench – we believe it’s the owner or neighbour)

Austar are the same provider that had the safety incident earlier this year where the worker was trapped when a trench collapsed.

We’re collecting the relevant background and will carry out an investigation with Networks that will include a debrief / interview with Austar. In my opinion we can’t let this company continue to operate in this way and will be working through our grounds for termination of this provider. We’ll need to engage Legal as we will expect Austar to litigate as soon as we terminate their listing.

Wayne”

110. Austar submits that this is evidence of actual bias in the decision maker and apprehended bias. Austar submits that it is irrelevant that the form of 29 November 2017 Sydney Water is decision is signed by Ms Port. As can be seen in cases such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24 (at 66 per Brennan J referring to Bushell v Environment Secretary [1981] AC 75 at 95), to treat the decision maker as someone separate and distinct from the organisation they head is to ignore practical realities. Austar submits that in that case, it was found that the Minister could not be regarded as unaware of information in the possession of the Minister’s department. Austar submits that when Ms Port relied on Mr Jackson’s Recommendation, and Mr Jackson had predetermined that the plaintiff’s listing was to be terminated, that breach of procedural fairness infected Ms Port’s decision.

111. Mr Corsaro SC accepts that for Austar’s contract-based attack on the decision for bias to succeed that Austar must establish actual bias. But for the judicial review claim Austar does not have to show actual bias. Austar submits that the July email and the circumstances of Mr Jackson’s recommendation establish actual bias, or alternatively apprehended bias.

112. Sydney Water’s Submissions and the Court’s Analysis. Sydney Water submits that Austar cannot make out either actual bias or apprehended bias here. Some of Sydney Water’s submissions are persuasive, but reasonably straightforward analysis is a basis to reject Austar’s biased decision maker contentions.

113. First, Austar’s contentions face a timing issue that cannot be avoided. Irrespective of how influential on Ms Port the content of Mr Jackson’s email might be inferred to have been, it was written in July 2017, well before Sydney Water commenced to engage the show cause procedure in October that year. Whilst the email certainly shows that in July 2017 Mr Jackson had little confidence in Austar, it is not to be inferred from the content of the email that Mr Jackson was saying that over the next three months or so he could never be persuaded to change his mind about Austar’s capacity to adhere to the mandatory criteria or to remain a listed provider of Sydney Water. All that Mr Jackson’s email said is that the case against Austar looked very strong and that in July 2017 he expected that termination would follow the show cause process. But the interposition of the whole show cause procedure between the email and the decision is a most significant matter which greatly reduces any effect of the email as showing actual bias. For that inference to be drawn, one has to regard the whole show cause process as a sham. And the degree of detail to which both sides committed in the show cause process is not consistent with that inference.

114. Second, the text of the email needs to be examined closely. It is not as definitive of a predetermined view as Austar submits. It refers to many uncertainties and implies openness to new information, which is quite the contrary of a predetermined view. It says, for example, “We’re collecting the relevant background”. And in a similar vein, it foreshadows that Sydney Water “will carry out an investigation with Networks that will include a debrief/interview with Austar”. Even the statement most dwelt upon by Austar “we cannot let this company continue to operate in this way” is preceded by the words “in my opinion”, which does not purport to make the view expressed a corporate one, nor to impose it upon anyone else. Rather, Mr Jackson was expressing that statement to be merely his own view, and he acknowledged that limitation. The statement does not suggest that Mr Jackson dictated an outcome to anybody, especially Ms Port.

115. And the statement that Sydney Water “will be working through our grounds for termination of this provider” does not necessarily foreshadow only one predetermined outcome. It clearly indicates that the opinion is held that termination is likely and that litigation will follow such a decision. But even judicial officers in a court situation, faced with arguments from competing counsel, can have an impression early in the argument that one particular outcome is likely but nevertheless the judicial officer can have an open mind to the submissions put on both sides. In my view, the statement in this email falls far short of showing actual bias, let alone bias that can be inferred to endure for another three months up to the time of the decision.

116. An allegation of actual bias requires proof of a closed mind or prejudgment by the decision maker, such that the decision maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 506 at 532 [72]). In my view, Mr Jackson’s 27 July 2017 email does not demonstrate such a closed mind, even if he were the decision maker.

117. Nor does it show a basis to contend the decision could be vitiated on grounds of apprehended bias. This is in part because the concerns that Mr Jackson expresses in the 27 July email relate directly to relevant considerations on which even Austar concedes it had a serious case to answer.

118. Third, the Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (“Briginshaw”) standard must be applied before the Court can reach a conclusion that the decision maker on 29 November 2017 was affected by actual bias.  Application of the Briginshaw standard here makes the first two points above even less adequate to support a conclusion of actual bias.

119. Fourth, there are no other supporting indicia of actual bias. There is no repetition of Mr Jackson’s email in the show cause procedure process that follows, which, in my view, bears all the hallmarks of an open minded and fair process. If the 27 July 2017 email was evidence of a predetermined plan, one would expect to see confirmation of that plan in other places. But it is not there.

120. Moreover, the show cause procedure put Austar on clear notice of the detail of the case Austar needed to meet and gave Austar a reasonable opportunity to present its case. And it must be said that Austar actively engaged, rightly in my view, with the case for de-listing that even it appreciated could not simply be dismissed, given its own past safety record, and repeated failure to maintain the mandatory criteria required of listed providers, as well as a history of promising but failing to do better. So the inference of actual bias should be all the more difficult to draw against Sydney Water.

121. Fifth, Sydney Water compellingly argues that Austar has not shown that if Ms Port was the Sydney Water decision maker, then she herself was biased. In my view, for the reasons already stated, Ms Port was the decision maker. So even if Mr Jackson’s email dated 26 July 2017 did indicate prejudgment on his part, it does not prove that Ms Port, the decision maker, also prejudged the issue.

122. Austar submits that because Sydney Water permitted Austar to finish certain works after 29 November 2017 in respect of which it was already contracted by a developer, that is a basis to infer that Sydney Water did not genuinely hold safety concerns about Austar’s performance.

123. In my view, that simple inference cannot be drawn. The fact that Sydney Water was to some extent “softening the blow” for Austar does not mean that Sydney Water did not hold genuine views about Austar’s safety record. The show cause notice and the Statement of Reasons indicate quite the contrary, as does Sydney Water’s conduct in warning all WSCs by email of the delisting on or about 8 December 2017. Some of the warning letters that Sydney Water sent out expressly engage with the WSCs about the possibility that other service providers could take over the relevant contracting work in place of Austar. Moreover, it is to be expected that as Austar’s workload decreased after the delisting that it would be easier for Sydney Water to supervise the remaining work and easier for Austar to manage the remaining work so that any safety risk would be likely to be reduced.

124. Austar also argues that the show cause notice had incorrectly identified that a trench had collapsed at the Oatley site. But the Statement of Reasons (at [21]) does acknowledge this error, which has not been acted on. But even in Austar’s own show cause submissions, at [4](d) and (e), acknowledge a safety issue at the Oatley site.

125. And finally, Austar submits that the majority of the CARs issued were for minor matters. But Austar should be judged on the way it put this to Sydney Water in response to the show cause notice. In the show cause submissions at [4](d), Austar conceded the significance of the CARs directions. And taken as a whole, the response to the show cause notice shows that they were treated as serious allegations against Austar.

126. In my view, this challenge to the decision is not made out on the basis of actual or apprehended bias.

(2) Was the Decision Unreasonable?

127. Austar’s Submissions. Austar submits that the 29 November 2017 decision was unreasonable and should be set aside on that ground. Austar submits that the circumstances that found its contentions of breach of the implied term to act honestly, fairly and reasonably set out above also demonstrate that the 29 November 2017 decision was unreasonable.

128. In a global summary in the course of oral argument, Mr Corsaro SC well encapsulated Austar’s argument as to the unreasonableness of the 29 November 2017 decision. He said it really came down to the proposition that the decision relied upon a single instance of failing to comply with an updated safe work method statement in circumstances where Sydney Water had previously lifted a suspension notice and a safe work statement and had confirmed that all prohibition notices were complied with. That crisp statement of Austar’s position is easy to understand and, in my view, is the substance of what Austar is submitting.

129. Mr Corsaro SC put this argument a slightly different way as well. He submitted that the decision must, in any event, have been premature. This is put on the basis that as there had only been a single later instance of failing to comply with a safe work method statement since Sydney Water had lifted the suspension notice and that the 30 March 2017 suspension notice tended to indicate that Sydney Water already had a view that “the root cause of the issues experienced in relation to this case and other recent CARs against Austar plumbing are systemic procedural issues in Austar…”. So Mr Corsaro SC submits Sydney Water should have either waited longer before suspending Austar’s listing or not been so quick on 29 November 2017 to act on one more instance of failure, and therefore the decision was premature. In substance though, this seems to me to be much the same as the principal argument.

130. Sydney Water’s Submissions. Sydney Water’s case in reply may be shortly stated. Sydney Water submits that it was quite reasonable for it to make the 29 November 2017 decision to de-list Austar and prevent it from working on Sydney Water infrastructure because of Austar’s “lengthy history of safety, quality and environmental breaches, [and because Austar] continually promised that it would do better and then further breaches occurred”.

127. Sydney Water submits that the applicable case law establishes that there are a number of strands to a challenge based on the unreasonableness of a decision and that Austar must bring itself within one of these but that it had failed to do so. These strands have been identified, Sydney Water submits, in the High Court’s statements of principle about unreasonable executive decisions in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”).

128. Sydney Water’s reference to Li as the applicable statement of principle is appropriate. I accept the comprehensive and compact summary of Li as it relates to the relevant standard of unreasonableness and the various bases on which unreasonableness can be found that is set out in Beazley P’s recent judgment in Kamm v State of New South Wales (No. 4) [2017] NSWCA 189 at [68]-[70]. Her Honour there stated the law in the following terms:

“In Li, the plurality, Hayne, Kiefel and Bell JJ, were of the opinion that the standard of unreasonableness is not limited to an irrational or bizarre decision, in other works, a decision so unreasonable that no reasonable person could have arrived at it: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 per Greene MR. Their Honours, at [67], considered that the question to which the standard of reasonableness is addressed is whether the statutory power has been abused. In their Honours’ view, Lord Greene MR’s formulation in Wednesbury can be taken as recognition of the fact that an inference of unreasonableness may be objectively drawn in some cases, even where a particular error in reasoning cannot be identified.

Their Honours explained, at [68], the application of Wednesbury unreasonableness in the same terms as the last category of House v the King (1936) 55 CLR 499 error, that is, that an inference of unreasonableness may be objectively drawn even where a particular error cannot be discerned, a principle that their Honours noted informed the reasoning of Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.

Their Honours, at [72]-[74], identified other specific errors in decision-making that they considered may also be encompassed by unreasonableness. These included when the decision-maker, by reference to the scope and purpose of the statute, had committed a particular error in reasoning; had given disproportionate weight to some factor; or reasoned illogically or irrationally. Their honours ultimately concluded, at [76], that “[un]reasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

133. Moreover, Sydney Water submits that Austar has not really articulated any reasons why the 29 November 2017 decision is said to be unreasonable but simply asserts that it was. Sydney Water says, for example, that in Austar’s principal written submissions (at [42]-[44]), Austar does not seek to identify the particular species of unreasonableness (based for example on Li), upon which it seeks to rely. Rather, Sydney Water contends that Austar simply propounds the bland assertion that the decision was unreasonable.

134. Consideration. Sydney Water’s contentions are the more persuasive on this issue. The Court concludes that the 29 November 2017 decision was not unreasonable and that it should not be set aside. This is so for several reasons.

135. First, there is a fundamental artificiality in Austar’s submissions on the alleged unreasonableness of the decision. As has been earlier stated in these reasons, merely because there was only one identified breach or incident involving Austar after the lifting of the suspension notice against it, does not mean that a decision maker should be rationally confined to analysis of that single breach when considering whether or not Austar was fit to retain its Sydney Water listing.

136. Sydney Water’s decision in May 2017 to lift the suspension is not a decision that Austar’s history as a listed provider before the lifting of the suspension can simply be ignored for all purposes. It is not some kind of declaration that earlier delinquent conduct was stale and could never be considered again for any purpose. Rather, the lifting of the suspension is merely a decision by Sydney Water that Austar had given it sufficient evidence of Austar’s rectification of prior poor conduct that Sydney Water was prepared to allow Austar to continue for the time being to retain its listing. As Sydney Water never indicated in lifting the suspension that the slate was wiped clean, so as to speak, then Sydney Water’s taking into account of Austar’s prior conduct in making the 29 November 2017 decision was not irrational in any of the accepted legal senses of the term.

137. Second, it was not in issue that Austar’s prior record was sufficiently poor to warrant the suspension. Austar did not during the show cause process challenge Sydney Water’s position that its record showed a series of safety, quality and environmental breaches over time. Austar’s show cause submissions did not, for example, dispute Sydney Water’s assertion that it had repeatedly failed to maintain Sydney Water’s published website mandatory criteria. Moreover, Austar made several substantial concessions about failures in its past safety and environmental record. For example, Austar stated (at [4]) that “Austar concedes there have been issues in the past with implementing Safety and Environmental requirements”, and that Austar “concedes the significance of the CARS directions and in particular, the seriousness of the Auburn Site safety issues and Oatley Site potential safety issues”. Once such concessions were weighed in the balance, it is very difficult, in my view, to say that the decision was irrational.

138. Third, in its response to Sydney Water’s show cause notice, Austar gave a number of assurances about its future capacity to comply with the safety and environmental requirements applicable to it (see e.g. [5], [18]-[32], [45]). Such assurances had in the past secured Austar’s continued listing as one of Sydney Water’s service providers and had assisted in the lifting of Austar’s suspension. There had been a number of these assurances. The suspension had been lifted in part based upon such assurances. As had been elaborated in Sydney Water’s show cause notice (at pp 2-3), Austar had demonstrated a detailed history of poor workmanship and safety incidents, each followed by an assurance to Sydney Water that it would not be repeated, then followed by further incidents.

139. But in my view, once another incident occurred, it was quite rational for Sydney Water to judge that all of Austar’s conduct, including its conduct before the lifting of the suspension, should be revisited because Sydney Water could have little confidence that Austar would in the future comply with its assurances, as it had failed to do so in the past. And Sydney Water’s Statement of Reasons does carefully explain why the decision maker was not satisfied with the assurances that Austar provided in its show cause submission.

140. Fourth, Sydney Water was required to discharge its statutory duties to protect its infrastructure and assets and to discharge its safety and environmental objectives. I accept that it was a legitimate integer in Sydney Water’s reasoning that it would not wish to continue to deal with a listed provider who placed at risk Sydney Water’s assets and infrastructure and risked safety breaches as demonstrated by a history of repeated breaches of safety, environmental and quality standards.

141. Though not in its written submissions, Austar somewhat faintly characterised its case as one of failing to take into account relevant considerations, or of taking into account irrelevant considerations, but in my view, it was really put as one of rationality.

(3) Did Sydney Water Deny Austar Procedural Fairness?

142. Austar developed a procedural fairness argument orally which was not put that way in its original written submissions. The Court ordered the parties to put on supplementary written submissions on the issue, which is dealt with below. Paragraph [17] of the Statement of Reasons refers to Sydney Water’s information request from SafeWork NSW on both the Oatley and Auburn incidents under the Government Information (Public Access) Act 2009. SafeWork NSW’s response to that request became relevant to the argument developed on behalf of Austar. On 21 August 2017, SafeWork NSW replied to Mr Jackson at Sydney Water in a response given under the Government Information (Public Access) Act. The response said the following:

“A search of SafeWork NSW’s records has identified documents falling within the scope of your request. However I advise that this matter is still ongoing and investigations are not complete.

As this matter is still under investigation, and in accordance with the Act, I considered the public interest factors for and against the disclosure of the information as follows:”

143. SafeWork NSW then identified a number of public interest factors for and against disclosure which are not of particular relevance to the present issue. The letter from SafeWork NSW continued, explaining why the documents would not be disclosed at that stage:

“After considering these factors, my decision is that there exists an overriding public interest against disclosure of this information. I consider release would reveal the activities being the subject of investigation, the nature and extent of the evidence which has been accumulated in relation to the investigation, the direction of the investigation, the disclosure of priorities of the investigation, the resources available to the investigators, or the hypotheses of method of the investigation.

Should you wish to obtain the currently unavailable documents once SafeWork NSW’s investigation has been completed, it will be necessary to make a new application

Please note, the fee will be waived and you will not be required to pay the $30 application fee.

Before submitting a new application, I recommend you check with SafeWork NSW to confirm that the investigation is complete. I suggest contacting in 3 – 6 months’ time to check the status of the WSMS references.”

144. The procedural fairness argument arises out of one section of the Statement of Reasons in which Sydney Water considered the question whether Austar had complied with all breach notices and legal requirements from SafeWork NSW in respect of the Auburn site and the Oatley site. These were matters dealt with in Austar’s response to the notice to show cause, at [7] to [17]. The appropriate starting point for analysis is Sydney Water’s Statement of Reasons at [16] to [19], which provided as follows:

“16.   Sydney Water's Show Cause Notice asked that Austar ‘...provide...any documents or notices that Austar has received from SafeWork NSW confirming that all investigations are closed and no further action will be taken against Austar in relation to George Young Street Auburn Site or Oatley incident’

17. On 27/07/2017, Sydney Water sought information under the Government Information (Public Access) Act 2009 (NSW) from SafeWork NSW on both the Oatley and Auburn incidents. The response from SafeWork NSW shows that the investigation is ongoing and not yet complete. Sydney Water asked this question of Austar to understand the status, findings or further actions SafeWork NSW was taking in relation to these incidents. Austar did not provide a response to the question asked by Sydney Water.

18.    In Austar's Response, Austar submitted that because SafeWork NSW accepted all of Austar's responses in relation to Prohibition and Improvement Notices it had therefore complied with all directions, corrective actions and legal requirements put in place by SafeWork NSW in relation to the Auburn Site and the Oatley site. However, there was no information to indicate that the investigations into these matters were ongoing in Austar's Response.

19.    Sydney Water infers from Austar's Response that Austar propose that since Austar complied with SafeWork NSW directions, Sydney Water should not consider these matters further. In my view, to just comply with directions after an incident occurs is not an acceptable management approach to safety, especially when serious issues are repeated. My key concern is Austar's history of repeated non-conformances and failure to meet the mandatory criteria for safety and that this will be repeated in the future.”

145. On this material Austar mounts procedural fairness and irrationality arguments. Although procedural fairness arguments were not developed in Austar’s original written submissions, in my view, the way the hearing unfolded with both parties being given ample opportunity to put submissions orally and then supplement them with written submissions after the oral hearing, no prejudice was occasioned to Sydney Water by this argument being allowed to proceed. The most concise way in which the arguments were put ultimately appeared in Austar’s closing submissions in reply filed on 21 February 2018, in paragraphs [17] and [18] as follows:

“17.   Firstly, the defendant made the decision to delist the plaintiff in reliance on a failure to provide confirmation that the SafeWork investigation had been closed in circumstances where the defendant knew that that information could not be provided.  The 21 August 2017 letter (CB1, p349) from SafeWork to the defendant advised that the investigation was ongoing and to check back in 3 to 6 months.  The plaintiff’s response to the show cause notice was submitted on 9 November 2017, less than 3 months after that letter.  Therefore, there is no way that the plaintiff could have provided confirmation that the investigation was closed in its show cause response.

18.   Secondly, the reliance on the failure by the plaintiff to confirm that the investigation was closed was unreasonable in circumstances where the provision of that information was not a show cause requirement. That is to say, the show cause notice did not say that the failure to provide such information (namely that the SafeWork investigation was closed) would result in the plaintiff being delisted.  Rather, that notice asked the plaintiff to show cause why it should not be delisted as a result of a failure to maintain the mandatory criteria.  As an aside, the show cause notice requested ‘any information, fact or circumstance’ that the plaintiff would like considered including ‘documents or notices Austar has received from SafeWork NSW confirming that all investigations are closed and no further action will be taken against Austar in relation to the George Young Street Auburn site or Oatley site’.  Therefore, there was a breach of the hearing rule insofar as the defendant failed to put the plaintiff on notice that a failure to provide confirmation that the investigation was closed would result in the plaintiff being delisted.”

146. In my view, Sydney Water’s reliance upon Austar’s failure to confirm the investigation was closed was neither unreasonable nor a breach of the hearing rule.

147. Whilst it is true that the show cause notice did not expressly say that the failure to provide information that the SafeWork investigation was closed would result in the plaintiff being delisted, the warning about the issue in the show cause notice was close enough to that possible outcome that Austar was clearly on notice that it needed to get confirmation from SafeWork NSW that investigations were closed, otherwise the fact that the investigations were open might be used in Sydney Water’s reasoning toward a delisting.

148. Austar argues that the show cause notice only asked the plaintiff to show cause why it should not be delisted as a result of failure to maintain the mandatory criteria. But those mandatory criteria include (as the show cause notice itself pointed out) a requirement that the listed provider “demonstrate an ability to plan and implement safety and environmental requirements” and that Austar “show satisfactory ongoing performance”. In my view, Austar was clearly on notice that delisting was on the cards if those criteria were not met. And it was not difficult for Austar to appreciate from the show cause notice that a failure to confirm that all SafeWork NSW investigations had been closed would itself have demonstrated a failure to meet the mandatory criteria.

149. Nor in my view can it be inferred, as Austar submits, that “there is no way that the plaintiff could have provided confirmation that the investigation was closed in its show cause response”. The Court simply cannot infer either way whether, had Austar engaged with this issue in its show cause response, it was possible that the SafeWork investigation could have been closed. Austar’s suggestion seems to be that Sydney Water was setting Austar up to fail by issuing a show cause notice on 4 October 2017, with the knowledge of SafeWork NSW’s reply on 21 August 2017 said that the investigation may take another 3 to 6 months. But such a conclusion is not available on the materials provided. In any event, Austar had its own independent ability to deal with SafeWork NSW after clearly being put on notice in the show cause notice that this was an issue to which Sydney Water would be giving attention in making its decision.

150. This criticism of Sydney Water’s decision is not made out.

Would Mandatory Discretionary Relief Have Been Granted Here in Any Event?

151. Austar’s case challenging the 29 November 2017 decision is therefore unsuccessful. But Sydney Water argued with some force that had Austar otherwise been successful, that its relief would have been limited in any event.

152. In my view, Sydney Water’s argument in this respect was also persuasive. Austar’s Amended Summons sought a mandatory injunction, which if granted, would have restored Austar to Sydney Water’s list of authorised service providers. But a more apt remedy, in my view, would have required Sydney Water to remake the decision in a way that did not breach any contractual duty good faith or fair dealing, or which otherwise did not demonstrate error amenable to the judicial review of administrative action.

153. This is particularly so because Austar had acknowledged in its show cause submissions that it had repeatedly failed to maintain the mandatory criteria and that it did not did not seek to assert otherwise during the hearing. Had Austar been successful in setting aside the 29 November 2017 decision, what might have been the regime applicable, pending a Sydney Water redetermination, may have been a matter for debate. But that was not the outcome.

154. And curiously, had Austar been successful in its overarching contract case, the Court would have been reluctant to grant equitable relief on discretionary grounds. In an enforcing mandatory injunction such as this claim for relief, the same defences are available as would apply if the action were one seeking a decree of specific performance in the proper sense: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, 2014, LexisNexis Butterworths) at [21-460]. The grant of such an injunction would have required, judging by the existing volume of correspondence in this case in relation to the show cause process, the Court to be involved in the supervision of Austar’s conduct. And such an injunction would force a listed provider contractual relationship on to Sydney Water, which as the mandatory criteria show, is one involving on Sydney Water’s part a considerable degree of at least implied confidence in the performance of the listed provider.

(F) Conclusion and Orders

155. For these reasons, Austar’s Summons will be dismissed.  As Sydney Water has been substantially successful in the proceedings, there seems to be no reason why an order for costs should not be made in its favour. But one or other party may seek a special cost order, so an opportunity for that to occur will be afforded to the parties.

155. The Court hereby makes the following orders:

1. The plaintiff’s summons is dismissed.

2. The Court orders that the plaintiff pay the defendant’s costs of these proceedings.

3. Order (2) is stayed for 28 days to permit the plaintiff, if it so chooses, to pursue its rights of appeal and to permit either party to file a motion seeking a special costs order.

4. Any party that files a motion for a special costs order may make it returnable before me on 3 October 2018 at 9:30 am.

5. Adjourn the proceedings before me for any argument in relation to costs to 3 October 2018 at 9:30am.

6. Grant liberty to apply to both parties to seek any relief that is consequential upon the making of these orders.

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Amendments

17 September 2018 - [6], second last and last line, insert ";" after "considerations; insert "(4)" before "was procedurally unfair"

[20], line 4, change "products of services" to "products or services"

[27], line 3, change "ACPD" to "ACDP"

[30], line 5, change "Developer Infrastructure Provider Agreement (or "DIPA") to "DIPA"

[43], line 3, change "did Sydney Water owe Austar a contractual duty" changed to "Sydney Water owed Austar a contractual duty"

[46], line 1, change "Sydney Water's email dated 15 May 2012" to "the 15 May email"

[49], line 2, change "Sydney Water's 15 May 2012 email" to "the 15 May email"

[49], line 3, change "Sydney Water" to "Austar"

[60], line 7, change "in site" to "on site"

[63], add full stop at end of paragraph

[70], line 6, change "client of privilege" to "client legal privilege"

[75], line 2, remove square brackets around "Austar"

[78], line 3, change "the plaintiff's" to "Austar's"

[85], line 2, change "decision were" to "decision was"

[91], line 5, change "listed" to "de-listed"

[93], line 6, [96], line 14, change "The Recommendation" to "the Recommendation"

[106], line 4, change first reference to "actual bias" to "apprehended bias"

[108], line 5, change "the plaintiff's" to "Austar's"

[112], line 3, insert comma after "persuasive"

[120], line 3, change "actually" to "actively"

[121], last line, insert comma after "the decision maker"

[137], line 3, add "it" before "is very difficult"

[155], line 1, insert "As" at beginning of sentence; insert comma after "proceedings" in second sentence

Decision last updated: 17 September 2018