BHP Petroleum (Timor Sea) P/L v Minister for Resources

[1993] FCA 882

2        ,93

JUDGMENT NO. ........ ..... .a.. . H........ ..

IN THE FEDERAL COURT OF AUSTRALIA	1 1
VICTORIA DISTRICT REGISTRY	1 No.VG 341 of 1993
1
GENERAL DIVISION	1
B E T W E E N :

BHP PETROLEUM (TIMOR SEA) PTY LIMITED and OTHERS

Appellant

MINISTER FOR RESOURCES

Respondent

Judge :	Heerey J
Date:	18 November 1993

Place: Melbourne

REASONS FOR JUDGMENT

I have been asked to exercise the jurisdiction conferred by

0.10, r.l(lA) to give certain directions as to the hearing of this appeal to the Full Court from a decision of the Administrative Appeals Tribunal. That rule provides:

"In any proceeding which is to be heard by a Full Court, whether in the original or appellate jurisdiction, such directions as is thought proper with respect to the conduct of the proceeding may be given by the Court constituted by a single Judge."

AUSTRA' '4

The appeal must be heard by a Full Court because one of the members of the tribunal was a judge: see Administrative Appeals Tribunal Act 1975 s.44(3)(c).

The case before the Tribunal concerned a decision that the appellant could not combine a number of petroleum projects for the purposes of s.20 of the Petroleum Resources Rent Assessment Act 1987.

- 5 DEC 1993
FEDERAL COURT OF

The respondent succeeded before the Tribunal on a jurisdictional point. It was argued that the appeal to the Tribunal was brought out of time. The initial appeal to the Tribunal was lodged in March 1991, and the jurisdictional point was only raised very shortly before the Tribunal commenced its hearing in February 1993.

The Tribunal proceeded to deal with the whole of the case and in the event upheld the jurisdictional point, although it found in favour of the appellant on the merits.

I have been asked by the respondent to give a direction that the jurisdictional point be decided by the Full Court as a preliminary question. I have been told that the estimate of time for a Full Court hearing, if the matter proceeds on the merits as well as the jurisdictional point, is four days. Argument on the latter point alone would, I am told, take half a day.

somewhat large, bearing in mind that the hearing before the	I must say the estimate of four days for a full hearing seems
Tribunal itself only took seven days, and of course the appeal to the Full Court will be confined to questions of law. There will be, as Practice Note No 1 requires, written summaries of arguments required to be submitted beforehand.
There is some significance in the fact that the Tribunal itself considered that the appropriate and convenient course was to deal with both jurisdictional point and merits at the one time.
However the major fact which influences me against granting the direction sought is the potential for delay which would, or might, ensue if the course suggested were adopted. The next callover for Full Court hearings in Melbourne is December for hearing in March, and then there will be a callover in April for sittings in June. If the matter were split, it is quite conceivable that the jurisdictional point would be reserved and would not be decided until after the list for the June sittings was determined. So if the appellant succeeded on the jurisdictional point, the hearing of the appeal on the merits would not take place until well towards the end of next year, with further delay caused by, quite probably, a reserved decision.
That seems to me a very significant extra burden to place on the appellant who has sought to have this dispute resolved by
the administrative and judicial process since May 1991.
It may be that, should the appellant ultimately succeed, it will be awarded interest on any tax overpaid. Counsel on both sides were not able to give a conclusive answer to this question. However, even if interest is payable it is a substantial hardship to have the uncertainty of not knowing whether a large liability (some $60m, as I was informed) is payable or refundable.
There is the further point that splitting the case would mean either the inconvenience of reconvening the same members of the Full Court to consider the matter on the second round, if that were to take place, or, alternatively, starting the second round afresh with a court which had had no previous contact with the matter, thereby resulting in duplication of time while the setting of this complex legislation was explained.
There was mention of the possible effect that splitting the case might have on the prospects of a party obtaining special leave to appeal to the High Court, but I think that possibility involves entering into the realms of speculation, and I do not take it into account.
In my opinion the application should be dismissed.
I will order that the respondent pay the appellant's costs of
the motion dated 26 October 1993.

I certify that this and

the preceding four pages (4) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

18 November 1993

Aupearances

Counsel for the applicant:	MS M Sloss
Solicitor for the applicant:	Arthur  Robinson &
Hederwicks
Counsel for the respondent:	Mr T Pagone
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	18 November 1993