Australian Livestock Suppliers Pty Ltd v Minister for Mines and Petroleum
[2015] WASC 359
•15 SEPTEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: AUSTRALIAN LIVESTOCK SUPPLIERS PTY LTD -v- MINISTER FOR MINES AND PETROLEUM [2015] WASC 359
CORAM: PRITCHARD J
HEARD: 15 SEPTEMBER 2015
DELIVERED : 15 SEPTEMBER 2015
FILE NO/S: CIV 1900 of 2015
BETWEEN: AUSTRALIAN LIVESTOCK SUPPLIERS PTY LTD
Plaintiff
AND
MINISTER FOR MINES AND PETROLEUM
Defendant
Catchwords:
Judicial review - Practice and procedure - Appliation by Attorney General for leave to intervene in the proceedings - Turns on its own facts
Legislation:
Mining Act 1978 (WA)
Mining Regulations 1981 (WA)
Rules of the Supreme Court 1971 (WA), O 56 r 2
Result:
Leave to intervene granted
Category: B
Representation:
Counsel:
Plaintiff: Mr A J Papamatheos
Defendant: Ms M J Elliott
Solicitors:
Plaintiff: Lawton Lawyers
Defendant: State Solicitor for Western Australia
Cases referred to in judgment:
Levy v the State of Victoria [1997] HCA 31; (1997) 189 CLR 579
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100
PRITCHARD J:
(This judgment was delivered extemporaneously on 15 September 2015 and has been edited from the transcript.)
This is an application by the Attorney General for Western Australia for leave to intervene in these proceedings, so as to file submissions and to be heard at the final hearing of the application.
It is clearly within the Court's inherent jurisdiction to allow a non‑party to intervene. The cases make clear that the power to do so derives from the Court's jurisdiction to hear and determine the matters falling within the limits of its own jurisdiction.[1] Order 56 r 2(b) of the Rules of the Supreme Court 1971 (WA) also makes clear that the Court has a power to allow a person who has not been served with an application for judicial review to be heard in respect of it.
[1] See Levy v the State of Victoria [1997] HCA 31; (1997) 189 CLR 579, 601 (Brennan CJ) and Smith v Commissioners of the Rural and Industries Bank of Western Australia [2009] WASC 100 [41] (Martin CJ).
The grant of leave to intervene ordinarily requires that the non-party demonstrate either a right to intervene, on the basis that that party's legal rights and interests will be directly affected, or, in the case where a party does not have a direct interest in the litigation but only some sort of indirect interest, that leave to intervene would be in the interests of justice.
I am satisfied that this is an appropriate case for the grant to the Attorney General of leave to intervene, for the following reasons.
First, this is a case where the respondent to the application, the Minister for Mines and Petroleum, has indicated, quite properly, that he will abide the decision so as not to endanger the impartiality that the decision‑maker is expected to maintain in the event that he is required to make a further decision as a result of the application for judicial review.[2]
[2] R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35 ‑ 36 (the Court).
Secondly, this is a case in which the other parties who may be interested in the application for judicial review have not shown any indication that they intend to participate in the hearing of that application. I note that the other parties have been served and have been given ample time to enter a notice of intention to appear. But, so far, there is no indication that they will do so. The consequence will be that there will be no contradictor before the Court.
Thirdly, the application for judicial review raises issues of construction in respect of the Mining Act 1978 (WA) and the Mining Regulations 1981 (WA), and an issue in respect of the content of the duty of procedural fairness which is said to arise in relation to the application of that legislation. In short, questions of the construction and operation of the Mining Act and the Mining Regulations are raised by the application for judicial review. Those issues have wider ramifications not limited to the applicant to the present proceedings. It is important that the Court is aware of the operation of the legislation beyond the circumstances involving the applicant in the present case.
Fourthly, counsel for the Attorney General has submitted that the State has an interest in the issues raised by the application for judicial review because the executive government of the State is involved in dealing with applications for exemptions of the kind in question in this case, and the application will clarify the policy which underlies the functions being exercised by the executive government in this case. That seems to me to be in the nature of an indirect interest in respect of the matters before the Court. In my view, it would be in the interests of justice for the Attorney General to have leave to participate in those circumstances.
Finally, I am also satisfied that the intervention by the Attorney General will not unduly add to the time or costs of dealing with the application for judicial review, and certainly not in a way which would be disproportionate to the benefit which the Court will gain from having the assistance of a contradictor in respect of the questions of construction which require determination.
For all of those reasons, it is in my view in the interests of justice that the Attorney General have leave to intervene, and I will grant that leave.
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