Austin BMI Pty Ltd v Deputy Premier

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SUPREME COURT OF QUEENSLAND

CITATION:

Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95

PARTIES:

In Matter No 2105 of 2022

AUSTIN BMI PTY LTD (ACN 164 204 308)

(applicant)

V

DEPUTY PREMIER, MINISTER FOR STATE DEVELOPMENT, LOCAL GOVERNMENT AND PLANNING AND MINISTR ASSISTING THE PREMIER ON OLYMPICS INFRASTRUCTURE

(first respondent)

AND

WANLESS RECYCLING PARK PTY LTD (ACN 623 407 081)

(second respondent)

AND

IPSWICH CITY COUNCIL

(third respondent)

In Matter No 2198 of 2022 

VEOLIA ENVIRONMENTAL SERVICES (AUSTRALIA) PTY LTD (ACN 051 316 584) AND (AUSTRALIA) PTY LTD (ACN 100 535 751) trading as TI-TREE BIO-ENERGY (ABN 67 450 387 919) an unincorporated join venture

(applicant)

V

DEPUTY PREMIER, MINISTER FOR STATE DEVELOPMENT, LOCAL GOVERNMENT AND PLANNING AND MINISTR ASSISTING THE PREMIER ON OLYMPICS INFRASTRUCTURE

(first respondent)

AND

WANLESS RECYCLING PARK PTY LTD (ACN 623 407 081)

(second respondent)

AND

IPSWICH CITY COUNCIL

(third respondent)

In Matter No 2192 of 2022

CAROL ASHWORTH

(first applicant)

AND

CORNELIA TURNI

(second applicant)

AND

ROSEMAREE THOMASSON

(third applicant)

AND

KERRY MAREE BUTLER

(fourth applicant)

AND

KERRI ANNE LYNCH

(fifth applicant)

AND

MARK MEIER

(sixth applicant)

V

DEPUTY PREMIER, MINISTER FOR STATE DEVELOPMENT, LOCAL GOVERNMENT AND PLANNING AND MINISTR ASSISTING THE PREMIER ON OLYMPICS INFRASTRUCTURE

(first respondent)

AND

WANLESS RECYCLING PARK PTY LTD (ACN 623 407 081)

(second respondent)

AND

IPSWICH CITY COUNCIL

(third respondent)

FILE NO/S:

2105 of 2022; 2192 of 2022; 2198 of 2022

DIVISION:

Trial

PROCEEDING:

Applications

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

5 May 2023

DELIVERED AT:

Brisbane

HEARING DATES:

28 to 30 September and 10 October 2022; Further written submissions of the joint applicants dated 7 October 2022; further written undated submissions of the Ashworth parties, further written submissions of the first respondent dated 14 October 2022; further written submissions of the second respondent dated 14 October 2022; further written submissions of the Attorney-General dated 20 October 2022; and further written submissions of the joint applicants dated 21 October 2022.

JUDGE:

Freeburn J

ORDERS:

1.   The applications are dismissed.

2.   The parties be heard on the form of the orders and on costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – where a decision was made to call-in a development application – where the applicants argue that the decision made was affected by apprehended bias – whether the decision maker had an obligation of procedural fairness - whether the principles of procedural fairness will apply or whether the principles have been excluded by statute

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – APPREHENDED BIAS – where the bias rule is not excluded by statute – where it is argued the decision to call in the development was influenced by political considerations and lobbying – whether a fair-minded lay observer would apprehend bias based on the circumstances

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO TAKE INTO ACCOUNT A RELEVANT CONSIDERATION - where it is submitted that the decision maker failed to consider representations in deciding…

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Details
Case
[2023] QSC 95
Decision Date

CaseChat Overview and Summary

The case of Austin BMI Pty Ltd v Deputy Premier involved a dispute over the decision to call-in a development application under the Planning Act. The applicants, Austin BMI Pty Ltd, sought judicial review of the decision, arguing it was affected by apprehended bias, procedural unfairness, failure to consider relevant representations, unreasonableness, inadequate reasons, and incompatibility with human rights. The court was tasked with determining whether the decision-maker had an obligation of procedural fairness, whether the principles of procedural fairness applied, whether the decision was biased, whether all relevant considerations were taken into account, whether the decision was unreasonable, whether adequate reasons were provided, and whether the decision violated human rights.

The court examined whether the principles of procedural fairness applied to the decision to call-in the development application. It found that Section 231 of the Planning Act was a privative clause that excluded judicial review except in cases of jurisdictional error. The court held that the principles of procedural fairness were not excluded by statute and therefore applied. The court also considered whether the decision-maker was biased, finding that a fair-minded observer would not apprehend bias based on the circumstances. Regarding the failure to consider relevant representations, the court found that the decision-maker was not required to evaluate the representations. The court determined that the decision was not unreasonable or irrational, as it was consistent with similar applications. The court concluded that the decision-maker provided sufficient reasons for the decision to call-in the application.

The court dismissed the applications and ordered that the parties be heard on the form of the orders and on costs. The decision underscores the importance of understanding the scope of privative clauses and the application of procedural fairness principles in administrative law. The court's analysis provides clarity on the grounds for judicial review and the standards that must be met for a decision to be deemed reasonable and fair.

Orders

Orders of the court

1. The applications are dismissed.

2. The parties be heard on the form of the orders and on costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 231 of the Planning Act provides:231 Non-appealable decisions and matters(1) Subject to this chapter, section 316(2), schedule 1 and the P&E Court Act, unless the Supreme Court decides a decision or other matter under this Act is affected by jurisdictional error, the decision or matter is non-appealable.(2) The Judicial Review Act 1991, part 5 applies to the decision or matter to the extent it is affected by jurisdictional error.(3) A person who, but for subsection (1) could have made an applicationunder the Judicial Review Act 1991 in relation to the decision or matter, may apply under part 4 of that Act for a statement of reasons in relation to the decision or matter.(4) In this section—decision includes—(a) conduct engaged in for the purpose of making a decision; and(b) other conduct that relates to the making of a decision; and(c) the making of a decision or the failure to make a decision; and(d) a purported decision; and(e) a deemed refusal.non-appealable, for a decision or matter, means the decision or matter— (a) is final and conclusive; and(b) may not be challenged, appealed against, reviewed, quashed, set aside or called into question in any other way under the Judicial Review Act 1991 or otherwise, whether by the Supreme Court, another court, any tribunal or another entity; and(c) is not subject to any declaratory, injunctive or other order of the Supreme Court, another court, any tribunal or another entity on any ground. [emphasis added] The evident purpose of s 231 is to oust the jurisdiction of courts and tribunals, except for those specific proceedings that are specified, and except for those proceedings where the Supreme Court decides that the relevant decision is affected by jurisdictional error. Of course, privative clauses like s 231 should be narrowly construed.[320] It is presumed that the Parliament does not intend to cut down the jurisdiction of the courts save to the extent that the legislation in question expressly so states or necessarily implies.[321][320]Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129 at [100]; citing Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 631 and a number of other cases.[321]Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. By the same token, it is appreciated that the Human Rights Act is to be read liberally as it allows for the vindication of human rights: Goode v Common Equity Housing Ltd [2014] VSC 585 at [25]. In Victoria it is a matter of some controversy as to whether a breach of the Victorian equivalent of s 58(1) the Human Rights Act[322] is a jurisdictional error. In Bare v Independent Broad-Based Anti-Corruption Commission[323] Warren CJ found that a breach of the Victorian equivalent of s 58(1) did not amount to jurisdictional error. Her Honour decided that there was no indication that it was the intention of the legislature in drafting the Act, including the equivalent of s 58(1), that a decision by a public authority that did not properly consider a human right, or that breached a human right would be invalid. However, the other two members of the Victorian Court of Appeal, Tate JA and Santamaria JA, both offered some detailed observations but found it unnecessary to decide the issue and left it unresolved.[324][322]Section 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). [323](2015) 48 VR 129 at [100].[324](2015) 48 VR 129 at [378]-[397] (Tate JA) and [496], [600] and [617]-[626] (Santamaria JA).

Ratio Decidendi

Legal Principle Established

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