Coffey LPM Pty Ltd v The Contaminated Sites Committee - [2014] WASC 504

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: COFFEY LPM PTY LTD -v- THE CONTAMINATED SITES COMMITTEE [2014] WASC 504

CORAM: CHANEY J

HEARD: 27 AUGUST 2014

DELIVERED : 23 DECEMBER 2014

FILE NO/S: GDA 4 of 2014

BETWEEN: COFFEY LPM PTY LTD
Appellant
AND
THE CONTAMINATED SITES COMMITTEE
First Respondent
WA SEAFOOD EXPORTERS PTY LTD
Second Respondent
WESFARMERS KLEENHEAT GAS PTY LTD
Third Respondent
CALTEX AUSTRALIA PETROLEUM PTY LTD
Fourth Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
MINISTER FOR ENVIRONMENT
Interveners

FILE NO/S :GDA 2 of 2014

BETWEEN :COFFEY LPM PTY LTD
Appellant
AND
THE CONTAMINATED SITES COMMITTEE
First Respondent
WINEBERRY HOLDINGS PTY LTD
Second Respondent
WESFARMERS KLEENHEAT GAS PTY LTD
Third Respondent
WA SEAFOOD EXPORTERS PTY LTD
Fourth Defendant
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
MINISTER FOR ENVIRONMENT
Interveners

FILE NO/S :GDA 3 of 2014

BETWEEN :COFFEY LPM PTY LTD
Appellant
AND
THE CONTAMINATED SITES COMMITTEE
First Respondent
CITY OF STIRLING
Second Respondent
WESFARMERS KLEENHEAT GAS PTY LTD
Third Respondent
WA SEAFOOD EXPORTERS PTY LTD
Fourth Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
MINISTER FOR ENVIRONMENT
Interveners

ON APPEAL FROM:
Jurisdiction              :  CONTAMINATED SITES COMMITTEE
Coram  :J MALCOLM CP AND OTHERS
File No  :CSC 19 of 2008
For File No               :  GDA 2 of 2014
Jurisdiction              :  CONTAMINATED SITES COMMITTEE
Coram  :J MALCOLM CP AND OTHERS
File No  :CSC 3 of 2013
For File No               :  GDA 3 of 2014
Jurisdiction              :  CONTAMINATED SITES COMMITTEE
Coram  :J MALCOLM CP AND OTHERS
File No  :CSC 4 of 2013

Catchwords:

Administrative Law - Contaminated sites - Nature of appeal against determination of Contaminated Sites Committee - Whether errors of law - Turns on own facts

Legislation:

Criminal Code 1913 (WA)
Contaminated Sites Act 2003 (WA)
Contaminated Sites Regulations 2006 (WA)
Environmental Protection Act 1986 (WA)
State Administrative Tribunal Act 2004 (WA)

Result:

Appeals GDA 2 and 3 allowed
Matter remitted to Committee
Appeal GDA 4 dismissed

Category: B

Representation:

GDA 4 of 2014

Counsel:

Appellant:     Dr J T Schoombee
First Respondent           :     No appearance
Second Respondent       :     No appearance
Third Respondent         :     No appearance
Fourth Respondent        :     Mr C S Williams
Interveners                   :     Mr R M Mitchell SC & Mr F Sunderland

Solicitors:

Appellant:     SRB Legal
First Respondent           :     No appearance
Second Respondent       :     DLA Piper Australia
Third Respondent         :     Hardy Bowen
Fourth Respondent        :     Solomon Brothers
Interveners                   :     State Solicitor for Western Australia

GDA 2 of 2014

Counsel:

Appellant:     Dr J T Schoombee
First Respondent           :     No appearance
Second Respondent       :     No appearance
Third Respondent         :     No appearance
Fourth Defendant          :     No appearance
Interveners                   :     Mr R M Mitchell SC & Mr F Sunderland

Solicitors:

Appellant:     SRB Legal
First Respondent           :     No appearance
Second Respondent       :     Bradley Bayly Legal
Third Respondent         :     Hardy Bowen
Fourth Defendant          :     DLA Piper Australia
Interveners                   :     State Solicitor for Western Australia

GDA 3 of 2014

Counsel:

Appellant:     Dr J T Schoombee
First Respondent           :     No appearance
Second Respondent       :     No appearance
Third Respondent         :     No appearance
Fourth Respondent        :     No appearance
Interveners                   :     Mr R M Mitchell SC & Mr F Sunderland

Solicitors:

Appellant:     SRB Legal
First Respondent           :     No appearance
Second Respondent       :     No appearance
Third Respondent         :     Hardy Bowen
Fourth Respondent        :     DLA Piper Australia
Interveners                   :     State Solicitor for Western Australia

Cases referred to in judgment:

B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481
BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221
Coffey LPM Pty Ltd v Contaminated Sites Committee [No 2] [2013] WASC 98
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Paridis v Settlement Agent Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319
Seiffert v The Prisoners Review Board [2011] WASCA 148

Table of contents
The nature of the appeal............................................................................................................. 8

The respondents' participation in the appeal.......................................................................... 9
Extension of time.................................................................................................................. 10

The questions raised in GDA 4 of 2014................................................................................... 10
Contaminated Sites Act 2003 (WA)......................................................................................... 12
The WASE decision................................................................................................................. 18
Ground 1 ‑ Whether the Committee erred in law in respect of the finding that MPL had punctured the fill pipe using a handle auger on 17 August 2004.................................................................................. 26

Breach of procedural fairness ‑ s 37 notice.......................................................................... 26
Breach of procedural fairness ‑ no oral hearing................................................................... 27
Failure to give proper reasons.............................................................................................. 29
Applying the wrong test and making seriously irrational findings...................................... 32

Ground 2 ‑ Whether the Committee erred in law in their finding that MPL had committed the offence of 'causing pollution' contrary to s 49(3) of the Environmental Protection Act 1986 (WA) 34

Did the Committee err in rejecting MPL's defence under s 74(1)(a) of the EP Act............ 35
Section 23B(2) of the Criminal Code................................................................................... 37

Ground 3 ‑ Whether the Committee erred in law in finding that MPL had allowed pollution to be caused 37

Can the facts as found amount to allowing pollution to be caused?.................................... 37
A duty to investigate the pipe after suspected contact......................................................... 39
Allowing pollution to be caused........................................................................................... 40

Ground 4 ‑ Whether the Committee misconstrued or misapplied s 25(3) of the CS Act......... 41
Conclusion on GDA 4 of 2014................................................................................................. 45
Appeals GDA 2 and 3............................................................................................................... 45

CHANEY J: The Contaminated Sites Committee (Committee) is established under s 33 of the Contaminated Sites Act 2003 (WA) (CS Act). Section 36 of the CS Act requires the Committee to make decisions as to who is responsible for remediation of a contaminated site and the extent to which a person is responsible. The appellant brings these appeals under s 77 of the CS Act against three decisions of the Contaminated Sites Committee. The first was made on 27 August 2013 (GDA 4 of 2014). The other two decisions were both made on 5 March 2014 (GDA 2 of 2014 and GDA 3 of 2014).
The decision the subject of GDA 4 (WASE decision) determined responsibility for remediation of a contaminated site, being a property known as 7 Hutton Street, Osborne Park (WASE site) which had, over a long period, been used as a petrol station. The Committee determined that the appellant, Coffey LPM Pty Ltd (Coffey), which is the current owner of an environmental consultancy business formerly known as MPL Group Pty Ltd (MPL) was responsible for remediation to the extent of 70%, that the owner of the property, WA Seafood Exporters Pty Ltd (WASE) was responsible for 15%, and that a former operator of the service station, Wesfarmers Kleenheat Gas Pty Ltd (WKG), was responsible for the remaining 15%.
Central to the attribution of responsibility for remediation to Coffey was a finding by the Committee that, whilst undertaking an environmental assessment of the site in August 2004, an employee of MPL damaged an underground remote fuel fill pipe (the fill pipe) whilst using a hand held augur, causing a hole in the fill pipe which led to the leakage of fuel and contamination of the site.
The decision the subject of GDA 2 of 2014 (Sadler decision) concerned remediation of a site (the Sadler site) owned by the second respondent in GDA 2, Wineberry Holdings Pty Ltd. It is located on the opposite corner from the WASE site. The Committee concluded that the Sadler site had become contaminated as a result of migration of contaminant from the WASE site. It attributed responsibility for remediation to the same parties and in the same proportions as it attributed in relation to the WASE site.
The decision the subject of GDA 3 (Road Reserve decision) concerned an area of the road reserve between the WASE site and the Sadler site, which the Committee also concluded was contaminated by migration of contaminant from the WASE site. Again, it attributed responsibility for the contamination on the same parties and in the same properties as the WASE site.

The nature of the appeal

An appeal under s 77 of the CS Act is available on a question of law. The appellant contends that, in reaching its finding that it damaged the pipe, and in reaching various other findings, the Committee made a number of errors of law such that the findings cannot stand. Before addressing the various grounds of appeal, it is important to bear in mind the scope of the current appeal.
The observations of Buss JA, with whom Wheeler and Pullin JJA agreed, in Paridis v Settlement Agent Supervisory Board[1]are applicable to appeals from the Committee under s 77 of the CS Act.[2] For present purposes, the observations of Buss JA, in Paridis, in relation to an appeal on the question of law can be summarised as follows:
i.An appeal 'on a question of law' is narrower than an appeal that merely 'involves a question of law'.
ii.Where an appeal lies 'on a question of law', the subject matter of the appeal is the question or questions of law.
iii.If a question raised by litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law.
iv.A question of mixed law and fact is not a question of law.
v.A ground of appeal which asserts that a decision is against the evidence or the weight of evidence does not raise a question of law.
vi.A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis.
vii.A ground of appeal that a Tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable Tribunal could have made that finding, alleges an error of law.
viii.The ground of appeal that a Tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law. It is not sufficient, however, if the consideration is merely one that may properly be taken into account or that many persons may have taken into account. There is a distinction between failing to take into account relevant considerations which a Tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence on the other.
[1] Paridis v Settlement Agent Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] ‑ [57]; see also Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [28] (Murphy JA; Pullin JA agreeing).
[2] BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221 [45] (Martin CJ).
In BP Australia Pty Ltd v Contaminated Sites Committee,[3] Martin CJ noted the observations of Basten JA in B & L Linings Pty Ltd v Chief Commissioner of State Revenue[4] and agreed with Basten JA's conclusion that the function of the court is limited to the identification of an erroneous answer in respect of a question of law, and that the court was not required nor entitled to embark upon any review of the decision making process of the Committee beyond that necessary to answer the appropriate identified question or questions of law.

The respondents' participation in the appeal

[3] BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221 [46].

[4] B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481 [150].

With the exception of Caltex Australia Petroleum Pty Ltd (Caltex), none of the respondents in any of the appeals chose to appear and be heard. The Committee appropriately filed a notice that it would abide the decision of the Court.
The Attorney General for Western Australia and the Minister for Environment applied for and were granted leave to intervene. They did so on two bases. The first was that the State has a potential interest in the proceedings because it has potential liability for remediation under s 29 of the CS Act in certain circumstances. The second was that, given the non‑appearance of any of the respondents directly interested in the decisions, it was desirable that the Court be assisted by submissions other than those of the appellant.
Caltex did appear, but principally to ensure that there was no challenge to the Committee's decision that there was no material contribution to contamination in the period in which Caltex occupied the land. At no point has Coffey sought to challenge that aspect of the decision.

Extension of time

An appeal under s 40 of the CS Act is required to be commenced within 21 days of the decision the subject of the appeal.[5]
[5] Rules of the Supreme Court 1971 O 65 4 9.
Appeals GDA 2 and 3 were commenced within time. The WASE decision was dated 27 August 2013 but was received by Coffey's solicitors on 16 September 2013. The appeal against the WASE decision was filed on 2 April 2014. An extension of time is thus necessary in relation to GDA 4.
The reasons for delay were explained in an affidavit of Sharmane Cornelia Errey, a solicitor acting for Coffey. It is not necessary to recite those reasons in detail. In short, at the time the WASE decision was delivered, there were two actions on foot in this court concerning liability for contamination of the WASE site and the Sadler site respectively. Those proceedings were being case managed together, and were, or were to be, the subject of mediation. Rather than appeal the WASE decision, Coffey took the view that it would be preferable to attempt to settle all matters through mediation of the court actions. When the Road Reserve decision and the Sadler decision were delivered, Coffey decided to institute appeals. Because liability in relation to the Sadler site and the Road Reserve site turned upon the determination in the WASE decision, Coffey's grounds in GDA 2 and 3 included the same complaints as to the reasoning in the WASE decision as it has raised in the appeal against the WASE decision. GDA 4, therefore, involved no additional work or hearing time than would necessarily have been required if only GDA 2 and GDA 3 were dealt with. If the three appeals were not all dealt with together, there would have been a possibility of inconsistent outcomes.
In the circumstances, there is a reasonable explanation for the delay, and it is appropriate that there be an extension of time granted to commence GDA 4.

The questions raised in GDA 4 of 2014

It is convenient first to deal with the appeal in relation to the WASE decision because that decision provided the fundamental basis for the other two decisions.
Coffey's grounds of appeal went through a number of reformulations and amendments, although throughout they centred upon what it said are four grounds or questions for determination. Those questions were:
1.Whether the Committee erred in law in respect of the finding that MPL had punctured the fill pipe when using a hand augur on 17 August 2004.
2.Whether the Committee erred in law in finding that MPL had committed the offence of 'causing pollution' contrary to s 49(3) of the Environmental Protection Act 1986 (WA).
3.Whether the Committee erred in law in finding that MPL had 'allowed' pollution to be caused contrary to s 49(3) of the EP Act.
4.Whether the Committee misconstrued or misapplied s 25(3) of the CS Act.
The appellant's answers to those questions involve contentions of what are said to be various different errors of law made by the Committee in reaching its conclusions. In that context, the appellant identified what it said were twelve categories of error of law made by the Committee. In relation to each ground or question, the appellant identified matters, or failures by the Committee, which it said amounted to errors of law of one or more categories. On a rough count, those four grounds are said to involve approximately 80 errors of law of one category or another. Those 80 odd alleged errors are described in 39 paragraphs, some of which have a number of subparagraphs, each containing a criticism of the Committee's decision amounting, it is said, to one or more errors of law.
It may be that the various reformulations of the appellant's grounds of appeal were intended to avoid the criticism made by Martin CJ in BP Australia Pty Ltd v Contaminated Sites Committee[6] at [47] where his Honour said:
There are nine grounds of appeal. They are prolix, repetitive and confused. They fall manifestly short of identifying, with any clarity or precision, a question or questions of law upon which the Committee has erred. It has therefore fallen to the court to endeavour to winkle out of the appellant's grounds and submissions the question or questions of law upon which the appellate jurisdiction of the court depends. This happens too often.
[6] BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221.
If that was the purpose of the reformulations, it was not achieved. Despite the provision of an annotated version of the grounds of appeal which provided cross references to various written submissions and other documents, the task of distilling the appellants' written and oral submissions to cogently deal with the issues in this case is by no means easy. I will, however, proceed by reference to the structure utilised by the appellant in its 'Minute of Amended Questions of Law and Substituted Grounds of Appeal' handed up at the hearing on 27 August 2014.

Contaminated Sites Act 2003 (WA)

The CS Act is concerned with the identification, recording, management and remediation of contaminated sites. Division 2 deals with the classification of sites by reference to criteria as to the state of contamination of the site concerned. Part 3 of the CS Act deals with remediation of contaminated sites. Section 23 provides that the only sites that are required to be remediated under the Act are sites classified as 'contaminated ‑ remediation required'.
Section 24 establishes a hierarchy of responsibility for remediation. Section 24(1) provides:
(1)A person is responsible for remediation of a site ‑
(a)in accordance with section 25, if the person has caused, or contributed to, the contamination of the site;
(b)in accordance with section 26, if the person is an owner or occupier of the site who has changed, or proposes to change, the use to which land that comprises all, or part, of the site is put; and
(c)in accordance with section 27, if the person is an owner of the site, or of a source site.

Section 25 deals with the responsibility for remediation of a person who caused or contributed to contamination. Section 25(1) attributes responsibility for remediation of a site to a person who caused or contributed to contamination of the site after the commencement of the CS Act. Although the Act received royal assent on 7 November 2003, it did not commence operation until 1 December 2006. The Committee concluded that the contamination of the WASE site resulted from the events in 2004, that is prior to the commencement of the operation of the CS Act. Section 25(3) deals with responsibility for contamination occurring before the commencement of the CS Act. It provides:
(3)A person who caused, or contributed to, the contamination of a site before the commencement of this Act is responsible for remediation of the site only to the extent that the person caused, or contributed to, that contamination by an act that was done without lawful authority.
It was that subsection which formed the basis for the attribution of responsibility to the various parties in relation to the WASE site. By s 25(5), an act done without lawful authority includes, amongst other things, an act that contravened any written law in force at the time the act occurred.
The CS Act distinguishes between what is referred to as a 'source site' and an 'affected site'. A source site means a site on which contamination, or on which a substance, has originated and from which it has migrated to another site (the affected site) causing or contributing to contamination on the affected site. Affected site is defined accordingly as a site on which contamination is caused or contributed to by contamination or via a substance which has migrated from a source site.
Section 26 deals with responsibility for remediation where an owner or occupier has changed the use of land. It is not of relevance to the matters in this appeal.
Section 27 deals with the responsibility of land owners for remediation. Section 27(2)(a) is of particular importance in so far as the appeals in GDA 2 of 2014 and GDA 3 of 2014 are concerned. Section 27 provides:
(1)A person who became an owner of a site before the commencement of this Act is responsible for remediation of the site to the extent that ‑
(a)the person knew, or suspected, or had reasonable grounds to know or suspect, that the site was contaminated at the time the person became an owner of the site; and
(b)the person is an owner of the site,
and, to that extent ‑
(c) a person is not responsible for remediation of the site under section 25; and
(d) the State is not responsible for remediation of the site under section 29(1)(a) or (b).
(2) A person who ‑
(a)became an owner of a site before the commencement of this Act and who did not know, or suspect, and had no reasonable grounds to know or suspect, that the site was contaminated at the time the person became an owner of the site;
(b)becomes an owner of a site after the commencement of this Act; or
(c)is an owner of a site and was an owner of that site at the time the contamination was caused, or contributed to,
is responsible for remediation of the site to the extent that ‑
(d)a person is not responsible under section 25 or 26; or
(e)a person who is responsible under section 25 or 26 ‑
(i)cannot, after reasonable attempts have been made, be identified or found or be made to assume responsibility for the remediation; or
(ii)is insolvent and a person has not been made responsible in accordance with section 28,
and to the extent that the person is an owner of the site.
(2a)A person who, under subsection (1) or (2), is responsible for remediation of a site that is a source site is also responsible for remediation of a site that is an affected site to the extent that ‑
(a)the contamination of the affected site is caused, or contributed to ‑
(i)by contamination; or
(ii)by a substance,
which has migrated to the affected site from the source site; and
(b)the person is an owner of the source site,
but only to the extent that ‑
(c)a person is not responsible for remediation of the affected site under section 25 or 26; or
(d)a person who is responsible for remediation of the affected site under section 25 or 26 ‑
(i)cannot, after reasonable attempts have been made, be identified or found or be made to assume responsibility for the remediation; or
(ii)is insolvent and a person has not been made responsible in accordance with section 28.
(2b)A person who is an owner of a site that is an affected site is not responsible for remediation of the site under subsection (1) or (2) to the extent that the contamination of the site is caused, or contributed to ‑
(a)by contamination; or
(b)by a substance,
which has migrated to the affected site from a source site.
(3)An owner within the meaning of section 5(1)(b)(i) or (ii) is not responsible for remediation of a site under this section to the extent in each case as is decided by the committee after taking into account the relevant circumstances and any matters prescribed for the purposes of this section.
(4)A decision of the committee under subsection (3) is a decision as to responsibility for remediation to which Part 3 Division 3 applies.
(5)A person is not responsible for remediation under subsection (2) or (2a) to the extent provided by an exemption certificate held by that person.
As noted above, the Committee is established by s 33 of the CS Act. The Committee is to be selected by the Minister from a panel of names which must include at least six persons with expertise in contaminated site management or environmental management, two legal practitioners, and one accredited contaminated sites auditor.[7] Although the panel from which members are to be selected must include two legal practitioners, the Minister is not required to select a legal practitioner to be a member.
[7] Contaminated Sites Regulation 2006 (WA) reg 16; Contaminated Sites Act 2003 (WA) s 33(3).
Section 34 of the CS Act provides that, in making a decision under the CS Act, the Committee is to consult with the Chief Executive Officer of the Department and may consult any other person it considers necessary. The Committee is required to act according to the equity, good conscience and substantial merits of a case without regard to technicalities or legal forms, it is not bound by the rules of evidence and it is to conduct its enquiries in any manner it considers appropriate.
The Committee is empowered under s 25 of the Contaminated Sites Regulations 2006 (WA) to require an applicant or a person who, in the opinion of the Committee, may be responsible for remediation, or may have information relevant to a decision as to responsibility for remediation, to provide information to the Committee. Such a request is to be in writing and is to specify a period of not less than 14 days within which the information is to be provided.
Before making a decision as to responsibility for remediation in respect of a person, the Committee is required by s 37 to give notice to that person. The requirements as to the notice are specified in s 37(a) ‑ (f) which provide:
37.Notice to be given before decision made
Before making a decision as to responsibility for remediation in respect of a person, the committee is to give written notice to that person ‑
(a)if the decision is proposed to be made in accordance with section 25, specifying ‑
(i)the nature of the contamination that the committee reasonably suspects that the person caused, or contributed to; and
(ii)the extent of the contamination that the committee reasonably suspects that the person caused, or contributed to;
(b)if the decision is proposed to be made in accordance with section 25(3), specifying the act that the committee reasonably suspects the person carried out without lawful authority and giving details of ‑
(i)the conviction of the person for the offence that was constituted by the act; or
(ii)any contravention described in paragraph (b) of the definition of "an act that was done without lawful authority" in section 25(5);
(c)if the decision is proposed to be made in accordance with section 26, specifying the change of use, or proposed change of use, to which the relevant land is, or is to be, put;
(d)setting out any other matters regarding responsibility for remediation that are relevant;
(e)informing the person that if the person wishes to disagree with any statements made in the notice the person may, within the time specified in the notice, make a written submission to the committee ‑
(i)specifying any statement that the person disagrees with;
(ii)giving reasons as to why the person disagrees with the statement; and
(iii)providing any information or documents supporting the reasons given;
and
(f)briefly and accurately summarising the effect of section 38.
Section 38 specifies the matters to be taken into account by the Committee in making a decision as to responsibility for remediation. It provides:
38.Matters to be taken into account in making a decision as to responsibility for remediation
(1)A decision as to responsibility for remediation is to be made in accordance with Division 1 and the section which empowers the decision to be made.
(2)In making a decision as to responsibility for remediation the committee is to take into consideration ‑
(a)the contents of any notice given by the committee under section 37; and
(b)any submission made to the committee referred to in section 37(e) and any information or documents provided in support of the reasons given in that submission,
and may take into consideration any other matters the committee considers relevant.
By s 39, the Committee is required to give notice of a decision as to responsibility for remediation specifying as to who is responsible for remediation and to what extent, the section of the CS Act under which the decision is made, the reasons for the decision and advise of the right to appeal under s 77. Section 40 provides a right of appeal in accordance with s 77.
As has already been noted, s 77 provides for a right of appeal to the Supreme Court on a question of law. It imposes a time limit of 21 days for the commencement of appeal after the notice under s 39. Provision is made for the court to extend time. Section 77(4) specifies that no appeal lies against the decision as to remediation except on a question of law.
I note in passing that neither the CS Act nor a decision of the Committee as to responsibility for remediation affects any liability in contract or tort in respect of contamination of the land concerned.[8]
[8] Contaminated Sites Act 2003 (WA) s 9(4).

The WASE decision

The WASE decision commences with a recitation of the background to the proceedings. It recites that the WASE site was classified under the CS Act as 'contaminated ‑ remediation required' on 7 May 2008. It recites that notice was given under s 37 of the CS Act on 21 March 2012 to all relevant parties being WASE, WKG, Caltex (the previous operator of the site) and Coffey. Submissions were received from WASE, WKG and Coffey on 26 April 2012. It then recites previous proceedings whereby Coffey sought prerogative relief in relation to the s 37 notice.[9] Those proceedings were unsuccessful and the Committee then sought and received further submissions from Coffey, WKG and WASE before making its final decision on 27 August 2013.
[9] Coffey LPM Pty Ltd v Contaminated Sites Committee [No 2] [2013] WASC 98.
The Committee then outlined the history of the occupation and use of the site. It found that a service station has been operating on the site since 1973. WASE purchased the site on 27 July 1988, at which time Caltex Properties Ltd was operating the service station as it had been for some years. In January 1999, Caltex Properties Ltd was deregistered and Caltex Australia Petroleum Pty Ltd took over the leasehold responsibilities until 31 July 1999 when WKG commenced leasing the site. New tanks and pipes were installed in May and June 1999, at which time soil investigations had been carried out and the newly installed pipes and tanks had been integrity tested.
In February 2000, WKG reported to WASE that fuel losses were being recorded for unleaded petrol. A testing failed to reveal any leaks and, eventually on 15 November 2002, WKG advised WASE that the fuel loss issues had been resolved following the purchase of a new dip stick for the unleaded petrol tank.
WKG did not renew its lease on expiration in July 2004, and WASE took over operation of the service station at that time.
The Committee found that under the lease agreement between WKG and WASE, WKG was required to provide an environmental assessment before vacating the lease. The environmental assessment was carried out following WKG vacating the site and MPL was engaged to carry out soil and ground water analysis, commencing work on 17 August 2004.
The Committee found that, on 17 August 2004, MPL used a hand auger to drill several soil bores on the site, and that the soil auger had struck the remote fuel line for unleaded fuel and had damaged the line. I will return the basis for that conclusion below.
The Committee referred to various investigations carried out between September 2004 and April 2005 which revealed contamination of ground water at the site, and led to identification of damage to the remote fill pipe and its repair in April 2005.
Based on that background, the Committee examined five different periods between 1988 and September 2008 in order to identify potential sources of contamination and the nature and extent of contamination. Those periods were explained by the following table:

Period #	Period start	Period end	Start Event	Parties
1	27/07/88	31/07/99	WASE purchases the site, Caltex leases and operates service station at the site.	Owner: WASE Lessee: Caltex Properties Ltd Operator: Caltex
2	01/08/99	31/07/04	Caltex vacates the lease. Lease is taken up by WKG.	Owner: WASE Lessee: WKG Operator: WKG
3	01/08/04	17/08/04	WKG vacates site. WASE occupies site and commences operation of the service station.	Owner: WASE Lessee: n/a Operator: WASE
4	18/08/04	08/04/05	MPL damages ULP fuel tank fill line during site investigation.	Owner: WASE Lessee: n/a Operator: WASE Contractor: MPL
5	09/04/05	10/09/08	Damaged ULP fuel fill line is repaired	Owner: WASE Lessee: n/a Operator: WASE

The Committee examined the evidence and submissions in relation to each of those periods. In relation to the first period, it concluded that any hydrocarbon impacts present at the end of that period were insignificant in relation to subsequent impacts. It also concluded that in the second and third periods, fuel loss reported could be explained by inaccuracies in measurement, and that there was insufficient evidence to indicate that the alleged fuel losses represented a significant source of contamination. It concluded that, in the context of the total contamination subsequently found to be present at the site, partial contamination caused or allowed during the second and third periods was insignificant.
The Committee also concluded that no significant contamination was caused or allowed during the fifth period.
There is no challenge in these proceedings to the Committee's conclusions in relation to any of the findings in relation to periods 1, 2, 3 and 5. The challenge to the WASE decision centres on the Committee's conclusions in relation to period 4, which includes the period in which MPL was contracted to undertake its environmental assessment of the WASE site.
In relation to the period 4, being between 18 August 2004 and 8 April 2005, the Committee noted that none of the parties disputed that leaks from the fill pipe contributed to contamination of the site, but the extent of contamination arising from that source, and the cause of damage to the pipe were disputed.
Having reached the conclusion that contamination during the earlier three periods was insignificant, and noting that the fuel dispensing system tested 'tight' after the damaged fill pipe was replaced, the Committee concluded that fuel leaks from the fill pipe constituted the only credible and significant source of contamination during the fourth period.
At [79] of the WASE decision, the Committee said:
The Committee reviewed information provided in MPL's Environmental Site Assessment report of October 2004 [17.1] which included the soil bore log for soil bore SB11. This bore log notes that "at 0.6 m encountered a suspected underground fuel line and was subsequently unable to proceed". When the location of this soil bore, as specified in the report, is compared to the known location of the ULP remote fill pipe, it is evident that the locations closely coincide, evidence which strongly suggests that the soil auger did in fact contact the pipe. The account of the contractor's observations during pipe excavation and repair on 7 April 2005 [6.8] notes that "Daniel found around concrete core sample in the vicinity of the fill line and a round hole in the fill line".
The Committee observed that there was no evidence to support MPL's 'postulation' as to possible causes of the contamination and noted that, despite the observation of possible contact with a fuel line in the bore log, there was no record that that was investigated by MPL.
The Committee then summarised the nine technical reports which had been submitted by WKG, WASE or Coffey. Amongst those was a report by Martin E Simms and Associates Pty Ltd (the Simms report) submitted by WASE. The Simms report concluded that the circular damage site was most likely caused by a soil auger. The report also concluded that damage near an elbow joint on the fill pipe was most likely caused by torsional stress applied when the auger contacted the pipe. A third damage site was said to be consistent with impact from a sharp object in tangential contact with the pipe. A number of the other reports considered by the Committee criticised the conclusions in the Simms report and expressed alternative views as to possible causes of damage to the fill pipe and the elbow joint.
At [82], the Committee reached its conclusion as to two of the three damage sites on the fill pipe. It said:
The Committee considered the professional opinions presented in the various technical reports, and noted that the reports were in general agreement that the 'tangential' damage site could have been caused by a spade (most likely during pipe removal). The Simms report linked the other two damage sites and postulated that both were caused by contact from a soil auger. URS and CDMS, on the other hand, attributed the elbow joint damage to faulty installation in 1999 and subsequent breakage due to soil compaction (at an unknown time). Photographs taken while the pipe remained in situ, showing the three sites of damage, were presented to the Committee [6.8, 6.17]. The account of the contractor's observations during pipe removal and repair, as related in the 2005 PB report [6.8], is lacking in detail, and the photographs do not provide a clear indication of likely causes of the damage. It seems apparent that the excavation and removal of the pipe in April 2004 was carried out primarily for the purpose of repairing the leak, and that forensic examination of the damage and its potential causes was limited. In addition, there was no reporting of the condition of soil surrounding the pipe that may have established evidence of leakage from any or all of the three sites. The Committee considers that it is therefore likely that the pipe may have sustained some damage when it was being excavated and removed. The findings of all three technical reports discussed above are consistent with the premise that the 'tangential' damage site could have been caused by a spade as the pipe was being excavated, and the damage at the elbow joint could have been caused by bending of the pipe as it was being removed. The Committee has concluded that it is most likely that the damage at these two sites was caused during removal of the pipe.

The Committee then discussed various submissions concerning the cause of the leakage. At [88], it concluded that there was no necessity to conclude that there was a causal link between damage at the 'circular' damage site and damage to the elbow joint as suggested in the Simms report and that there was a possibility that damage at the circular site was caused by contact with a soil auger, without consequential damage to the elbow joint.
At [89], the committee discussed Coffey's assertion that the auger could not have damaged the site but concluded that the assumptions underlying that assertion must be weighed against the physical evidence showing that the pipe was damaged.
At [90] and [91], the Committee concluded that:
The Committee has considered the elements of the case put by Coffey and concluded that they do not conclusively demonstrate that a soil auger could not have caused the observed damage to the pipe. The Committee considers that 'best practice' following the suspected encounter with a fill pipe would have been to investigate to confirm whether or not any damage had occurred, and to fully describe the incident in any subsequent report. Neither of these was done.
Since the evidence indicates that a soil auger did contact the pipe, and there is no alternative explanation for the 'circular' damage site identified on the pipe, the Committee has concluded that the most credible explanation for the circular damage site on the pipe is contact by a soil auger during the drilling of soil bore SB11.
Having concluded that the contamination had been caused by leakage from the circular damage site which in turn had been caused by the soil auger operated by MPL's employee, the Committee turned to its conclusions as to the apportionment of responsibility for contamination. In addition to the finding as to the cause of the damage, the Committee found that:
a.WASE operated the site during the relevant period and the use of the damaged fuel line caused contamination to occur;
b.MPL notified WKG of the presence of hydrocarbon contamination at the site on 18 October 2004;
c.At a meeting on 8 December 2004, WKG advised WASE of the ground water contamination that had been identified at the site;
d.WKG notified WASE of the presence of phase‑separated hydrocarbon contamination at the site on 1 April 2005; and
e.WASE commissioned investigations which identified the damaged fuel line on 7 April 2005 and repaired it on 8 ‑ 11 April 2005.
The Committee considered that the contamination of the site was caused or contributed to by the acts of:
i.causing damage to the underground pipework;
ii.failing to notify relevant parties of possible damage to the underground pipework; and
iii.continuing to use underground pipework while damaged.
The Committee considered that the act of causing damage to the pipework by the auger was an act which caused pollution in breach of s 49(3) of the Environmental Protection Act 1986 (WA) (EP Act). It was therefore an act done without lawful authority for the purposes of s 25(3) of the CS Act. Having done so, it considered Coffey's argument that, if it did damage the pipe, then it was accidental damage, so that Coffey had a defence under either s 74(1)(a)(ii) or s 74(1a)(a) of the EP Act. The former section provides a defence to proceedings for an offence under the EP Act in respect of acts causing environmental harm if the person charged proves the act or event occurred as a result of an accident otherwise than by negligence of that person. The latter section provides a defence to proceedings if the person charged proves that it took reasonable precautions and exercised due diligence to prevent the commission of the offence.
The Committee accepted that the damage caused to the pipe may have been accidental, but at [112] noted that Hall J's observation in Coffey LPM Pty Ltd v Contaminated Sites Committee [No 2] (Coffey [No 2])[10] as to the effect of s 74(1)(b) and s 74(1a)(b) that:
... the defences can only be availed if the defendant has notified the CEO of the Department of the emission of pollution or the occurrence of the offence as soon as practicable after they occur.
[10] Coffey LPM Pty Ltd v Contaminated Sites Committee [No 2] [2013] WASC 98 [98].
The Committee continued, at [113]:
Although Coffey argues on the one hand that MPL apparently had no knowledge of the damage to the fill pipe (notwithstanding contact with the pipe was suspected) Coffey seeks to claim on the other hand that ''actual notifications by MPL did occur within the limits of its lack of knowledge at the time" [34.0, paragraphs 68-74]. Notification is claimed as a consequence of MPL's expectation that any relevant information provided by MPL in its report to WKG would be passed on to the then Department of Environment. MPL's Stage 11 Environmental Site Assessment Report dated 18 October 2004 117.1] was supplied to WKG in October 2004, but this report did not contain any specific reference to damage, or suspected damage to the ULP remote fill pipe, or to the occurrence of any contamination as a result. Instead, the report speculated that the contamination was "possibly due to holes, pitting or an actual breach of the UST, or possibly from poorly sealed underground supply and return lines". This report does not provide actual notification of the event most likely to have caused pollution at the site (i.e. damage to the remote fill pipe). The report did provide a recommendation to WKG that the Department of Environment should be notified about groundwater contamination that had been identified at the site. However, this was a recommendation only, and the Committee does not accept that a recommendation to a third party meets the requirements for notification such that a defence under section 74 of the EP Act can be successfully raised. The Committee is of the view that in order to claim the defences under section 74, the responsible party must notify the department directly, and "as soon as reasonably practicable after the occurrence". There is no evidence to indicate that the terms of MPL's contract with WKG in any way prevented MPL from directly notifying the CEO of the Department in accordance with section 74 of the EP Act. MPL clearly did not believe it had caused the contamination identified at the site, and did not directly notify the Department of Environment, and therefore the defences cannot be claimed.
The Committee concluded that, to the extent that contamination was caused or contributed to by the act of causing damage to the underground pipe work, MPL is solely responsible for remediation under s 25(3) of the CS Act.
The Committee then dealt with the failure of MPL to notify relevant parties of its suspicion that the underground pipe work had been 'encountered' during its site investigation on 17 August 2004. That failure was considered by the Committee to be an act that allowed pollution to occur during the relevant period. The Committee referred to MPL's claim that, since it did not know of the damage to the pipe, it could not notify the relevant parties of the damage. The Committee accepted that MPL did not have knowledge of the extent of the damage but found that 'there is a clear evidence that MPL had reason to suspect that damage to the pipe could have occurred'. It concluded that as MPL had the power to damage the pipe and thus cause pollution, it was within MPL's power to prevent that pollution from occurring, or at least to limit any ongoing contamination. The Committee concluded that if MPL had taken steps to investigate the status of the pipe after contact was made with the soil auger, or if it had reported the suspected contact with the pipe to WKG or WASE, then the pollution could have been prevented. It considered that that omission constituted an act that allowed the pollution to occur and was done without lawful authority under s 25(3) of the CS Act.
The Committee also considered that WKG's failure to notify relevant parties of the possibility that damage had occurred, or that contamination had been found at the site after MPL notified it of contamination on 18 October 2004, was an act that allowed pollution to occur during the relevant period. The Committee rejected WKG's claim that it could not notify WASE of the possibility of damage since it did not know of the damage until the pipe that was excavated in 2005. The Committee considered that from October 2004, WKG was in possession of the same knowledge as MPL, namely that the soil auger had contacted an underground pipe, and that hydrocarbons had been detected in ground beneath the site, and WKG's failure to notify was an act that allowed contamination to occur and was done without lawful authority. Accordingly, WKG were found to be partly responsible for remediation.
The Committee attributed 70% of the overall responsibility for remediation to MPL on the basis that much of the total responsibility arose from the act of damaging the fill pipe, and a lesser proportion from the act of failing to notify WKG or WASE of the suspected contact with the pipe during site investigation. It concluded that WKG's responsibility for remediation was 15%. The Committee acknowledged that it was not possible to determine with any accuracy the relative amounts of fuel released from the pipe over any particular time frame because the pipe would have leaked only during refuelling events and the amount of fuel released may have varied with each refuelling event. The Committee, therefore, based its apportionment having regard to the 'relative significance of the acts contributing to pollution at the site'.
Finally, the Committee attributed the remaining 15% of overall responsibility to WASE on the basis that the continuing use of the underground pipe, while damaged, was the act that caused pollution to occur and was committed without lawful authority. It rejected WASE's argument that it should not be held responsible for remediation because it had no knowledge of the damage to the fill pipe, citing Hall J in Coffey [No 2] at [96] where his Honour said that it is not necessary to show that an alleged offender intended to cause the pollution, or was negligent in failing to prevent the pollution, before a court will find that a person caused the pollution.

Ground 1 ‑ Whether the Committee erred in law in respect of the finding that MPL had punctured the fill pipe using a handle auger on 17 August 2004.

Coffey submits that this finding by the Committee involved 12 errors of law.

Breach of procedural fairness ‑ s 37 notice

The first contention is that the Committee breached the principles of procedural fairness by not informing Coffey through its s 37 notice of the case it had to meet in respect of allegations that it damaged the fill pipe. The particular complaint made is that the notice gave no basis as to why the Committee 'reasonably suspected' the damage by MPL in the context where there existed contested expert opinion. This is said to constitute both a breach of natural justice and a breach of the statutory requirements for the s 37 notice.
These contentions were dealt with by Hall J in Coffey [No 2] which was an application for a writ of certiorari to quash the s 37 notice, a writ of prohibition to stop the Committee from relying on the notice and proceeding to a final decision, and a writ of mandamus requiring the Committee to conduct further investigations and an oral hearing. The argument that the s 37 notice failed to identify the case which Coffey had to meet, and did not comply with the requirements for a s 37 notice, were rejected by Hall J at [68] to [76]. It is not necessary to set out in full Hall J's reasons for rejecting those contentions. It is sufficient to say that, with respect, I entirely agree with his Honour's analysis and the conclusions in relation to the contentions, and I adopt his reasons for rejecting the same contentions in this case.

Breach of procedural fairness ‑ no oral hearing

The next contention by Coffey is that the Committee breached the hearing rule of natural justice by deciding not to hold any oral hearing where questions could be put to witnesses, and in particular expert witnesses. There is no merit in this contention. An issue in Coffey [No 2] was whether or not the Committee was required to hold an oral hearing and a site inspection before issuing the s 37 notice. Hall J concluded that Coffey had not made out its claim that, in the circumstances of the case, procedural fairness required an oral hearing and a site inspection prior to the issue of the s 37 notice. The reasons for that conclusion are compelling. The question which now arises is whether an obligation to conduct an oral hearing was required before the Committee proceeded to a final decision under s 39.
It can be accepted that, in the absence of plain words of necessary intendment to the contrary, the principles of natural justice generally regulate the exercise of a power to make an administrative decision affecting the rights and interests of a party.[11] It is clear that procedural fairness is required to be extended to a person in respect of whom the Committee might make an adverse finding as to responsibility for remediation. As Hall J observed in Coffey [No 2] at [55]:
The content of the rules of procedural fairness will always be subject to the proper construction of the statute under which a particular decision is made: Salemi v McKellar (No 2) [1977] HCA 2 ; (1977) 137 CLR 396, 401 (Barwick CJ), 419 (Gibbs J) and 460 (Aitken J); R v McKellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461, 463 (Barwick CJ), 470 (Gibbs J) and 475 (Mason J); Heatley v The Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, 491 (Barwick CJ), 498 (Aitken J). Procedural fairness does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise: NCSC v News Corp [1984] HCA 29; (1984) 156 CLR 296 (Gibbs CJ).
[11] Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 [74] ‑ [75] (the Court).
His Honour continued at [56] to [57]:
In this case there are a number of aspects of the statutory context which are inconsistent with any requirement that the committee is required to hold an oral hearing before giving an applicant a notice under s 37. First, as noted earlier, neither the Act nor the regulations confer power on the committee to compel witnesses to attend for examination or cross-examination. The committee would therefore only be able to carry out an oral hearing of the kind sought by the applicant if the persons who the applicant wishes to cross-examine attended voluntarily and agreed to answer the questions which the applicant wishes to pose. Secondly, the committee has no power to administer oaths or affirmations to witnesses: See s 6 of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA). Thirdly, the committee is constituted as an administrative committee that may, but is not required to, include a person with legal qualifications. Fourthly, the fact that s 37 refers only to the making of written submissions after a s 37 notice is given tends to suggest that the process as a whole is not one intended to include oral hearings.
Where legislation does not mandate an oral hearing, or contemplate such a hearing occurring as a matter of course, a right to such a hearing may be less readily inferred as being required by the rules of procedural fairness. A requirement to provide an oral hearing will be more readily inferred where the statute provides the necessary framework for such a hearing to occur: NAHF v The Minister for Immigration (2003) 128 FCR 351 [34].
In my view,
•the absence of any provisions in the Act or the Regulations specifically dealing with an oral hearing;
•the absence of any power to require witnesses to answer questions, or to compel attendance;
•the power to require the provision of information being limited to written requests; and
•s 34 of the Act which requires the Committee to conduct its enquiries 'in any manner it considers appropriate',
inexorably lead to the conclusion that the requirements of procedural fairness so far as they apply to the Committee do not require the holding of an oral hearing and an opportunity to cross‑examine witnesses. I note in passing that s 34 of the CS Act might be contrasted with s 32 of the State Administrative Tribunal Act 2004 (WA) which contains a specific requirement to provide parties with an opportunity to examine, cross‑examine and re‑examine witnesses.
As Hall J observed in Coffey LPM Pty Ltd v Contaminated Sites Committee [No 2]:[12]
It is not apparent in this case that the applicant would suffer a substantial injustice or practical unfairness or be denied the opportunity to challenge the conclusions reached by Mr Sims if an oral hearing was not conducted. The relative merits of the competing expert opinions rely on the thoroughness, consistency and logicality of the reports. These are matters which can be addressed in written submissions; indeed, they are likely to be better addressed in that manner with evidence of this type which depends less on demeanour and more on questions of accuracy and intellectual rigour.
[12] Coffey LPM Pty Ltd v Contaminated Sites Committee [No 2] [2013] WASC 98 [62].
It was open to the Committee to choose whether it held an oral hearing, notwithstanding the absence of any of the usual powers which are extended to bodies which call witnesses and permit cross‑examination. However, the content of the Act and regulations suggest that oral hearings are likely to be the exception rather than the rule. It was clearly open to the Committee to proceed as it did to deal with the expert evidence on the papers. All parties had a full opportunity, which they utilised, to see, respond to, and make submissions about the evidence before the Committee. The failure to hold an oral hearing worked no unfairness in this case, and was not an error by the Committee.

Failure to give proper reasons

The next alleged error by the Committee in relation to its finding as to the damage to the fill pipe is that the Committee failed to give proper reasons for rejecting or not acting on the evidence of Contract, Design and Management Services Pty Ltd (CDMS) who were the only experts who examined the type of auger used. That is said to be a breach of the obligation under s 39 to give reasons for the decision.
In approaching this contention, it is necessary to bear in mind the proper approach to the analysis of reasons given under s 39 of the CS Act. In BP Australia Pty Ltd v Contaminated Sites Committee,[13] Martin J adopted what he had said in Hancock v Executive Director of Public Health[14] as explaining the principles governing the requisite content of reasons under s 39 of the CS Act. He referred to the statement by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[15] namely that an appellate court must read reasons under challenge as a whole and fairly, taking account of the decision‑maker's lack of legal expertise, without applying a 'fine apellate toothcomb'. Nor must the reasons be viewed 'with an eye keenly atuned to the perception of error'.[16]
[13] BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221 [124].
[14] Hancock v Executive Director of Public Health [2008] WASC 224 [65] ‑ [74].
[15] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 291.
[16] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 466; (1993) 43 FCR 280, 287 (Neaves, French & Cooper JJ).
In Re Babban; Ex parte Suleski,[17] Kennedy J said:
Section 145E(3) of the Act requires the Panel to give its determination and reasons in writing to the Director. The requirements for reasons have been discussed in a number of decisions of this Court. Thus, in Re A Medical Assessment Panel; Ex parte Hays, unreported; FCt SCt of WA; Library No 980575; 5 October 1998, Wheeler J, with whom the other members of the Court agreed, said at 6 - 7 of her reasons:
So far as the 'reasons' of the panel are concerned, it is fair in my view, to characterise the mere listing of matters allegedly considered by the panel as a complete failure to provide reasons. The essence of reasons for decision is that they disclose the reasoning processes of the Tribunal. Fulfilment of the obligation to give reasons ensures that a person whose interests may be adversely affected by a decision understands why the decision has been made, and allows a party dissatisfied with a decision to determine whether there has been a reviewable error: see Re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478, Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 at 507, Telescourt v Commonwealth (1991) 29 FCR 227.
As has been said on many occasions, no standard of perfection is required in preparation of the reasons, and they are to be considered fairly and not combed through 'with a fine appellate toothcomb to find error': Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291, Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157. At a minimum, however, it seems to me that in a case of this kind the panel must not merely list the materials upon which it relied, without any hint as to what portions of those materials is considered particularly relevant or the way in which it reconciled any portions of those materials which might have been in conflict. It should at least have set out what it considered to be the material facts which emerged from the materials to which it referred, and its process of reasoning from those material facts to its conclusion. Although each case must be considered individually, having regard to the purpose of the obligation to provide reasons, it is generally sensible for a fact finding body of this kind to make a particular reference to material which would appear to be inconsistent with the conclusion which it reached (such as the EMG and nerve conduction study in this case) and to explain why such material was considered not to be relevant, or to be outweighed by other considerations.
See also Re A Medical Assessment Panel; Ex parte Rusich [2001] WASCA 111.
[17] Re Babban; Ex parte Suleski [2001] WASCA 289 [12], [14].

While it is apparent that Coffey couches its complaint on this point in terms of a failure to give adequate reasons, its submissions tend to venture into complaint about merits of the decision. It is important to be mindful of Buss JA's observation in Paridis that linguistic gymnastics in the formulation of grounds of appeal cannot convert a question into a question of law.
In addressing the expert reports at [81] of its decision, the Committee noted that:
i.The Simms report concluded that the circular damage site was most likely caused by soil auger.
ii.The URS report did not rule out the possibility that the circular damage site was caused by a soil auger, but concluded that it was impossible to accurately determine the cause of the damage without having sighted the auger.
iii.The CDMS report concluded, on the basis of an inspection of the damaged pipe, it was unlikely that any of the three damage sites could have been caused by impact from a soil auger. As to the circular damage site, CDMS were unable to determine what instrument would have been most likely to produce that damage.
iv.A response by Simms raised disagreement between Simms and CDMS on the magnitude of the vertical force likely to have been applied by the soil auger contacting the pipe.
v.A response by Simms reiterated its claims in relation to the damage to the pipe and defended their methodology.
I have set out above the passages at [82], [90] and [91] of the Committee's decision which expressed the Committee's conclusions on the cause of the damage to the fill pipe.
In essence, Coffey's complaint is that the Committee failed to give adequate reasons as to why it preferred the evidence of Simms over the other expert evidence, and in particular the evidence of CDMS which was the only expert to examine the auger. Particular concern appears to be expressed in relation to the fact that the Committee did not mention that CDMS was the only expert to examine the type of hand auger used.
In my view, there is no substance to this ground of complaint. The reasons given by the Committee do reveal its reasoning process for its conclusion that the use of the hand auger was the cause of the circular damage to the fill pipe. It noted that there was reference in bore log SB11 to the possibility of contact by the auger with the pipe, and noted that there is no alternative explanation for circular damage site. In its analysis of the expert opinions, the Committee also had regard ([83]) to the relationship between contamination detected by soil and ground water sampling and the date of the reported contact with the pipe in bore log SB11. The Committee's conclusion was based upon its examination of the views of the experts, the absence of any evidence of a cause to the circular damage to the fill pipe other than by way of contact with the auger, and the relationship in time between the contact and the detection of contamination. It was not necessary for the Committee to rehearse all of the arguments put forward by various experts, although it did address many of Coffey's arguments. It was open to the Committee to reach the conclusion which he did, and its reasons for doing so are revealed by the reasons. The Committee did not fail to comply with its obligations under s 39 in that respect.

Applying the wrong test and making seriously irrational findings

Coffey contends that the Committee misdirected itself and applied the wrong test to fact‑finding in concluding, at [90], that MPL could not conclusively demonstrate that a soil auger could not have caused the observed damage. This is said by Coffey to be an error of law by misconstruing a statutory function, serious irrational decision‑making and insufficiency of evidence which demonstrates that the decision‑maker asked itself the wrong question. None of those contentions has substance.
The statement by the Committee, when read in context, and having regard to the need not to read the reasons of a lay tribunal with an eye keenly attuned to legal error, is nothing more than a rejection of Coffey's arguments. It does not amount to 'casting some heavy reverse onus on MPL', as Coffey submits. Read in the context of the discussion over several pages of the different views of the various experts, the statement simply reflects a conclusion that the evidence did not demonstrate that a soil auger could not have caused the observed damage, a factor relevant to a consideration of the other evidence pointing to a conclusion that it was the cause of the circular damage.
Coffey also takes exception to the reference to 'best practice' found (at [90]). It complains that 'this issue had never been raised' prior to the finding, and was in any event of no probative value on the question of whether Coffey had damaged the fill pipe. This is said to constitute six different types of error of law. Four of those errors are said to arise from the proposition that the finding was of no probative value to the question of whether Coffey had damaged the fill pipe. I accept that the observation as to 'best practice' does not bear upon whether Coffey had caused the damage. There was no reason to think that the Committee considered that it did. The question of what might have been done by Coffey after a suspected encounter with the fill pipe was a matter which was relevant to the consequence of the damage, the question of whether MPL allowed pollution to be caused, and as to the ultimate apportionment of responsibility. I will return to the question of allowing pollution to be caused later in these reasons.
The remaining two alleged errors which relate to the reference to 'best practice', are that it was not a matter raised in the s 37 notice therefore was a breach of the requirements of s 37, and a breach of the rules of procedural fairness. It is not clear whether Coffey would have argued that, should it have suspected the encounter with a fill pipe, it would not be good practice to investigate whether or not damage had then occurred. It is clear, on a reading of the decision as a whole, that, in any event, the Committee did not rely on any concept of 'best practice' as a foundation for liability. The Committee dealt at some length with the issue of Coffey's failure to notify parties of possible damage to the fill pipe from [111] to [118]. In my view, the reference to 'best practice' in [90], read in context, does not raise 'an issue' which was required to be disclosed in the s 37 notice or as a matter of procedural fairness.

Ground 2 ‑ Whether the Committee erred in law in their finding that MPL had committed the offence of 'causing pollution' contrary to s 49(3) of the Environmental Protection Act 1986 (WA)

As noted above, the Committee concluded that the act of causing damage to the fill pipe was an act which caused pollution in breach of s 49(3) of the EP Act, and accordingly was an act done without lawful authority. Coffey contends that the Committee made a number of errors of law in reaching that conclusion.
The first error is that it is said that the Committee misconstrued s 49(3) of the EP Act because, on a proper construction of s 49(3) of the EP Act, MPL cannot be said to have 'caused pollution' by what was an inadvertent or unintentional act, and not any deliberate act on its part, a natural consequence of which was damage to the fill pipe.
Coffey relies on the passage in Alphacell Ltd v Woodward[18] where, after observing that if a person deliberately and intentionally does certain acts of which the natural consequence is that certain results ensue, he may be said to have caused those results even though they may not have been intended, Viscount Dilhorne continued:
We have not here to consider what the position would be if pollution was caused by an inadvertent and unintentional act without negligence. In such a case it might be said that the doer of the act had not caused the pollution although the act had caused it. Here the acts done by the appellants were intentional. They were acts calculated to lead to the river being polluted if the acts done by the appellants, the installation and operation of the pumps, were ineffective to prevent it.
[18] Alphacell Ltd v Woodward [1972] All ER 475; (1972) 70 LGR 455, 824 [840].
Alphacell was concerned with an overflow of pollution into a river because two pumps designed to prevent overflow had, unknown to the appellant, been obstructed by debris and thus failed to work efficiently. That occurred notwithstanding that regular checks of the tanks were made by the appellant's staff during the course of the day on which the overflow occurred. The intentional acts which their Lordships considered rendered the appellant liable for causing pollution were the installation and operation of the pumps.
In this case, the Committee concluded that it was the act of MPL in using the auger and, albeit accidentally, damaging the fill pipe which caused the damage. Use of the auger in a way which damages the fill pipe would plainly have the consequence that the fill pipe would leak fuel when used and in that way cause pollution. There can be no doubt that the use of the auger was an intentional act by MPL. The use of the auger by MPL can be equated to the installation and operation of the pumps by Alphacell. It is not necessary that MPL intended to damage the fill pipe with the auger, nor is it even necessary to establish that it did so negligently, in order to establish a breach of s 49(3) of the EP Act. The Committee did not misconstrue s 49(3) in the way suggested, nor did it ask itself the wrong question as asserted by Coffey.

Did the Committee err in rejecting MPL's defence under s 74(1)(a) of the EP Act

Coffey further asserts that the Committee erred in holding that MPL could not rely on the defence in s 74(1a) of the EP Act on the ground that it had failed to notify the Department or the CEO directly and as soon as reasonably practicable after the occurrence.
Section 74(1a) of the EP Act provides:
(1a)Subject to subsection (2), it shall be a defence to proceedings for a Tier 1 offence if the person charged with that offence proves that ‑
(a)the person took reasonable precautions and exercised due diligence to prevent the commission of the offence; and
(b)as soon as was reasonably practicable after the occurrence that gave rise to the charge the person notified particulars of the occurrence in writing to the CEO.
Section 74(2) provides:
(2)The defence referred to in subsection (1), (1AA) or (1a) is not available to a person unless he notifies the CEO of his intention to rely on that defence within 21 days after the day on which ‑
(a)the relevant summons is served on him; or
(b)if no summons is served on him in respect of the relevant offence, he is informed of the place and time at which he is alleged to have committed that offence and of the nature of that offence.
An offence under s 49(3) is a 'Tier 1' offence. No proceedings have at any time been commenced against Coffey or MPL for an offence in relation to the damage to the fill pipe. Thus, there has been no occasion for Coffey to notify the CEO under s 74(2). I accept, as did the Committee, that the question of whether MPL acted without lawful authority requires a consideration of whether a defence under s 74(1a) would have been available without regard to the requirement of s 74(2).
The Committee dealt with the question of Coffey's reliance on s 74 at [113] of its reasons which I have set out above in full at [60].
Coffey asserts that the Committee misconstrued s 74(1a) because, in the absence of knowledge that it had damaged the fill pipe, the requirement under s 74(1a)(b) could not arise. I note in passing that this admission is logically inconsistent with the alternative basis upon which error is asserted in relation to s 74, namely that Coffey did in fact give the relevant notice. The requirement to give notice was a requirement to do so as soon as reasonably practicable after the occurrence. The Committee's conclusion was that no notice was given by MPL to the CEO as required by the section at any time. That was a finding of fact. What s 74(1a)(b) requires is that there be notification of the particulars 'of the occurrence'. The 'occurrence' in this case was the contact of the auger with the fill pipe. The Committee found, and it was open to it to do so based on the evidence of bore log SB11, that MPL had reason to suspect that the fill pipe had been damaged. By the time of its report in October 2004, MPL was aware of contamination on the site. No notice to the CEO was given by MPL. The Committee did not miscontinue s 74(1a) in the context of its reasoning.
The second error attributed to the Committee by Coffey in relation to s 74(1a) is that it misconstrued the section by reading in a requirement of 'directness' in relation to the notice. In my view, read in its context, the use by the Committee of the words 'directly notify' does not, as Coffey contends, exclude the possibility of notification through an agent. Clearly, the section requires the person concerned to notify the CEO, or at least ensure that the CEO is notified on its behalf, of the occurrence. The Committee, in examining the relevant communications, found that Coffey did no more than make a recommendation in a report in October 2004 that notification be given. The Committee concluded that that fell short of the requirement in s 74 to notify the CEO, because a distinction exists between, on the one hand, a recommendation by a person to a third party that the third party make a notification, and, on the other hand, a notification to the CEO by that person whether personally or through an agent. It was open to it to do so, and it did not misconstrue the section by doing so.
Coffey also contends that by failing to consider the terms of various documents in relation to the question of notification, the Committee asked itself the wrong question and failed to take into account a relevant consideration. It invites an examination of the chain of communications to support that conclusion. That contention amounts to no more than an argument that the Committee should have reached a different decision. The contention does not raise a question of law by applying labels applicable to recognised categories of error of law. As Buss JA observed in Paridis, a tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, and Coffey's contention amounts to no more than an assertion to that effect.

Section 23B(2) of the Criminal Code

In its notice of appeal, Coffey asserted that the Committee erred in failing to find that it had not acted without lawful authority because a defence under s 23B of the Criminal Code was available. That argument was abandoned at the hearing of the appeal, and it is not necessary to deal with it further other than to note that Coffey's argument on the same point in Coffey [No 2] was rejected by Hall J.[19]

Ground 3 ‑ Whether the Committee erred in law in finding that MPL had allowed pollution to be caused

Can the facts as found amount to allowing pollution to be caused?

[19] Coffey LPM Pty Ltd v Contaminated Sites Committee [No 2] [2013] WASC 98 [99].

As well as finding that Coffey had caused or contributed to contamination of the site by reason of it damaging the fill pipe, the Committee also considered that MPL had contributed to the contamination by its failure to notify WKG or WASE of the suspected contact with the pipe. At [116], the Committee said:
MPL has claimed that, since it did not know of the damage to the ULP remote fill pipe, it could not notify the relevant parties of this damage [34.0, paragraphs 67.1 and 77]. The Committee accepts that MPL did not have knowledge of the extent of the damage to the fill pipe, but there is clear evidence that MPL had reason to suspect that damage to the pipe could have occurred. As MPL had the power to damage the pipe and thus cause pollution, it was within MPL's power to prevent that pollution from occurring, or at least to limit any ongoing contamination. The question the Committee must consider is whether MPL took all reasonable steps to prevent pollution from occurring once contact of a soil auger with an underground pipe was suspected. The Committee concluded that, if MPL had taken steps to investigate the status of the pipe after contact was made by the soil auger, or if MPL had reported the suspected contact with the pipe to WKG or WASE, then the pollution could have been prevented. It is this omission of action to prevent the pollution that, in the view of the Committee, constitutes an act that allowed pollution to occur.
Coffey notes that in [116], and on occasions in the paragraphs immediately before and after [116], the Committee used the expression 'allowed pollution to occur' rather than the expression found in s 49(3) of the EP Act, which is 'allows pollution to be caused'. That is identified by Coffey as being an error of law by misconstruing a statutory provision. There is no substance in that contention. In [115] of the decision, the Committee referred to 'an act that allowed pollution to occur during the fourth period in breach of section 49(3) of the EP Act'. In the context in which the words 'allowed pollution to occur' are used, it is quite clear that the Committee was using 'occur' effectively interchangeably with 'be caused'. In its context in s 49(3), allowing pollution to be caused is a reference to allowing the environment to become polluted. It is not confined to allowing the act which results in the emission of waste. For example, an owner of land may, acting negligently or otherwise in a way outside the owner's control, learn that a contractor has done some damage which, if not repaired, will result in pollution of the land. If the owner does nothing to repair the damage, it will have allowed pollution to be caused notwithstanding that it did not allow the act which is the effective cause of the emission. The owner has thereby allowed the pollution to 'occur' in the ordinary sense of that word. The Committee did not, by its use of the word 'occur', misconstrue s 49(3) of the EP Act.
Coffey makes similar criticism of the Committee's reasoning that if MPL had reported the suspected contact with the pipe, then pollution 'could have been prevented'. That is said to be a 'wrong test' as to whether the person 'allows pollution to be caused'. Coffey submits that the fact that an omission could have prevented a particular result cannot in law amount to allowing that result to be caused.
In Coffey [No 2], Hall J said at [95]:
A person contravenes s 49(3) if they cause pollution or allow it to be caused. The term "allow" has at least as wide a meaning as "permit" DeKuyper v Crafter [1942] SASR 238, 243. A person permits something if they have knowledge of it and the authority or power to prevent it occurring. The knowledge required may be actual knowledge or knowledge of circumstances such that it could be said that they shut their eyes to the obvious or allowed something to go on not caring whether it occurred or not: Grays Haulage Co v Arnold [1966] 1 All ER 896, 898.
The Committee concluded that Coffey had 'reason to suspect that damage to the pipe could have occurred'.[20] There was evidence to support that finding, namely bore log SB11 which reported having encountered a suspected underground fuel line. As Hall J noted in Coffey [No 2], the term 'allow' has at least as wide a meaning as 'permit'. The meaning of permission was discussed by Knox CJ in The Corporation of the City of Adelaide v The Australasian Performing Right Association Ltd[21] where his Honour said:
... [I]ndifference or omission is "permission" within the plain meaning of that word where the party charged (1) knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done; (2) has the power to prevent it; (3) makes default in some duty of control or interference arising under the circumstances of the case; and (4) thereby fails to prevent it.
[20] WASE decision [116].
[21] Adelaide City Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481, 487.

In substance, the Committee concluded that MPL had constructive knowledge of the possibility of damage to the pipe and that it failed adequately to report that the suspected damage or to investigate the status of the pipe after contact was made. The Committee found that they would have been reasonable steps to take to prevent contamination as a consequence of the suspected damage. Coffey's failure to take those steps was a contributory cause to the ultimate damage which occurred. By not taking the steps which were open to it, the Committee concluded that Coffey allowed the contamination to occur. It was open to it to do so. No error of law is involved in that process of reasoning.

A duty to investigate the pipe after suspected contact

Coffey contends that the Committee, in effect, found that there existed a duty on MPL to undertake an investigation after the suspected contact with the pipe by the auger. That submission appeared to be made on the basis that the reference to 'best practice' imports a duty to investigate.
I have rejected earlier in these reasons the contention that the reference to 'best practice' involved a breach of s 37 of the CS Act, or the rules of procedural fairness. There is no basis for a contention that the Committee imputed to MPL a legal 'duty' to investigate the damage. The submissions by Coffey in support of this ground[22] comprise essentially arguments as to why the Committee should have found that MPL adequately reported the suspected damage by submission of bore log SB11 with its report dated 18 October 2004 to WKG, and it had no obligation or even cause to do more.
[22] Appellants' submissions, 9 July 2014 [84].
It is not open in this appeal to challenge the Committee's findings of fact. The Committee was called upon to make an evaluative decision as to the relative contributions to contamination of the different parties. At [115] ‑ [118] of its reasons, the Committee examined MPL's response to the suspected contact with the underground pipe. It determined that, had the Committee drawn the attention of WKG or WASE to the possibility of damage to the pipe, the pollution could have been prevented. It did not couch that discussion in terms of any legal duty on MPL, and it was not necessary for it to do so. The Committee drew its conclusions from the evidence to which it referred. Coffey's contentions that it should have arrived at a different conclusion, or that the decision is against the weight of evidence, does not raise a question of law.

Allowing pollution to be caused

I have summarised at [106] above that the Committee's basis for concluding that MPL allowed pollution to occur. Coffey contends that, in reaching that conclusion, 16 errors of law were made. It contends that in three respects it misconstrued the statutory provision, in three respects it asked itself the wrong question, in two respects there was no rationally probative evidence to support its finding, in three respects it failed to have regard to a relevant consideration, it had regard to an irrelevant consideration, it engaged in serious irrationality in making a finding in two respects, it breached natural justice by failing to respond to a substantive articulated argument,[23] and it made an error of law 'in respect of general legal obligations or relations'.
[23] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 [24] (Gummow & Callinan JJ).
To establish those errors, Coffey contends that there was no evidence that MPL had knowledge of what was being allowed to be caused, and that the Committee did not find that it had the requisite knowledge, but merely 'had reason to suspect' damage to the pipe. It says that there was no evidence to support the conclusion that MPL had 'reason to suspect' any damage and that the inference drawn by the Committee in the absence of evidence was grossly unreasonable or seriously irrational. It contends that the Committee ignored a statutory declaration by Mr Ron D'Ercole to the contrary. Finally, it is said that MPL lacked the requisite power or authority to prevent the pollution.
The Committee relied on bore log SB11 in concluding that MPL had reason to suspect it had damages the pipe. Bore log SB11 contained a notation which read:
Yellow sandy backfill material (at 0.6M) encountered a suspected underground fuel line and was subsequently unable to proceed).
It cannot be said that it was seriously irrational, or that it was not open to the Committee, to rely on that evidence for its conclusion that MPL had reason to suspect damage to the pipe. In essence, the Committee reasoned that either upon encountering the pipe, or at least subsequently when it reported soil contamination in the vicinity of the pipe in October 2004, MPL should have caused investigations to be undertaken so as to prevent the possibility of ongoing contamination. It is clear that MPL had the authority or power to bring to the attention of WKG the fact that there may have been damage to the fill pipe. It can be accepted that MPL was not the occupier of the site, but it is apparent that the Committee took the view, as a matter of practical common sense, that had MPL responded appropriately to the risk of which it had cause to be aware, namely to bring to the attention of WKG that it may have damaged the fill pipe, steps would have been taken to investigate the matter. Furthermore, although the Committee accepted that MPL's agreement with WKG may have precluded it from communicating the results of its investigations to WASE, there is nothing irrational in the Committee's conclusion that MPL could have notified WASE of the possibility of damage to the pipe. Possible damage to the fill pipe is a different matter from the results of investigations.
In my view, none of the alleged errors of law in relation to the Committee's conclusion that MPL allowed pollution to be caused are made out.

Ground 4 ‑ Whether the Committee misconstrued or misapplied s 25(3) of the CS Act

Section 25(3) of the CS Act is set out above. It attributes responsibility for a mediation of a site 'only to the extent that the person caused, or contributed to, that contamination by an act that was done without lawful authority'. Coffey contends that the Committee failed to deal with the issue addressed by the parties, namely whether auguring by MPL had taken place on the basis of a site map which WKG had supplied to MPL pursuant to a contractual obligation. In its submissions in reply, Coffey asserted that the issue of reliance on the site map was a 'mandatory consideration in the case'. Coffey asserts that the Committee's failure to mention that issue in its reasons amounts to a failure to have regard to a relevant consideration or a breach of natural justice by failing to deal with a substantive articulated argument.
In considering Coffey's contention that the Committee erred in law by failing to take into account a relevant consideration, it is necessary to bear in mind the basis upon which a failure to take into account a relevant consideration amounts to an error of law. That basis was discussed by Martin CJ (with whom McLure P and Murphy JA agreed on this point) in Seiffert v The Prisoners Review Board[24] where his Honour said:
Accordingly, a basis for judicial intervention will only be made out because of failure to take account of a relevant consideration where the decision-maker was obliged, as a matter of law, to take the consideration into account. Conversely, a basis for judicial intervention on the ground of taking an irrelevant consideration into account will only be made out when it is established that the decision-maker took into account a matter that he or she was precluded from considering: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39. Neither basis for intervention will be made out if a decision-maker has failed to consider a matter that it was open to consider, but which he or she was not obliged to consider, nor if a matter was taken into account which it was open to the decision-maker to consider, even though there was no obligation to take it into account. Where the legislation does not specifically enunciate the considerations which a decision-maker is bound to consider, or which a decision-maker is precluded from considering, the ascertainment of those considerations is to be determined by implication from the subject matter, scope and purpose of the Act: see Minister for Aboriginal Affairs v Peko-Wallsend (39 - 40).
[24] Seiffert v The Prisoners Review Board [2011] WASCA 148 [192].
The issue of the significance of the site map supplied by WKG was not a 'relevant consideration' in the sense explained in Seiffert. It was simply a matter relied upon by Coffey in the manner outlined below.
Coffey argues that the failure by the Committee to deal with the issue of the site map amounted to a failure 'respond to a substantial, clearly articulated argument relying upon established facts' and thereby to a failure to accord natural justice.[25] In support of that submission, Coffey makes reference to various documents where reference is made to an inaccurate plan being supplied by WKG to MPL. Of those, only one document is a submission from Coffey's solicitors.[26] At par 42 and par 43, the submission recites that MPL utilised the site map in identifying bore hole positions. At par 62, reference is made to 12 matters which are said to demonstrate that any damage to the fill pipe occurred by accident. Three of those matters concern obtaining the site map, the contractual entitlement to the site map, and the use of the site map to identify locations for drill holes.
[25] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 [24] (Gummow & Callinan JJ).
[26] Record Volume 5 Document 34.
Other than the argument as to the fact that the damage occurred by accident, I have not been able to identify from the documents referred to by Coffey, any other 'clearly articulated argument relating to the site map'. The Committee accepted that the damage to the fill pipe by the augur occurred by accident. It was therefore not necessary for it to respond specifically to the submission in relation to the site map. It did not deny natural justice by not addressing the site map issue in its reasons, nor did it fail to take into account a relevant consideration.
Coffey also criticises the Committee's exercise of discretion in its apportionment of responsibility for remediation. It is not easy to understand Coffey's submissions on this ground. In essence, as I understand the position, Coffey's complaint stems from [125] of the Committee's decision which reads:
WKG has submitted [33.0] that this percentage is unreasonably large in view of the timeframe within period 4 (15 October 2004 ‑ 8 December 2004) during which WKG failed to notify WASE of the potential damage to the ULP remote fill pipe. In considering the relative percentages of responsibility to allocate to parties on the basis of 'failure to notify', the Committee recognized that it was not possible to determine with any accuracy the relative amounts of fuel released from the damaged pipe over a particular timeframe in Period 4 because the pipe would have leaked only during fill events, and the amount of fuel released may have varied within each fill event. Rather than attempting to calculate precise shares based on the amount of fuel released, the Committee has considered the relative significance of the acts contributing to pollution at the site in its determination of the relative shares of responsibility. In this context, the Committee is satisfied that WKG's share of 15% is appropriate.
Coffey contends that the reference to considering 'the relative significance of the acts contributing to pollution at the site' indicates that the Committee adopted a test which did not conform with s 25(3) of the CS Act, and in particular the stipulation that the person is responsible for a remediation 'only to the extent that the person caused, or contributed to, that contamination'. It argues that the basis upon which it applied that test, as explained in [125] of the decision demonstrates that the Committee did not exercise its discretion on a proper basis.
In BP Australia Pty Ltd v Contaminated Sites Committee, Martin CJ said at [135]:
The function of the Committee in allocating proportionate responsibility for remediation amongst those who have caused or contributed to contamination of the site bears some similarity to the task of a court allocating proportionate responsibility amongst joint tortfeasors, in that in each case, a value judgment must be made based upon relative culpability and contribution to the loss: see Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 7(2); Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34 ; (1985) 59 ALR 529, 532; Fremantle Ports v P & O Ports Ltd [2008] WASCA 126, [46] (McLure JA); Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102 [3] (Martin CJ), [187] (Mazza J); Parlin Pty Ltd v Choiceone Pty Ltd [2012] WASCA 19 [32] (Newnes JA), [69] (Murphy JA).
He continued at [137]:
It is, however, necessary and appropriate for the court to identify the considerations bearing upon culpability and contribution to loss which have been taken into account for the purposes of making the apportionment. Even where a court fails in that responsibility, the decision on apportionment will not be set aside unless it is so unreasonable or plainly unjust as to give rise to an inference of error. In Oxley County Council v Macdonald [1999] NSWCA 126, the trial judge did not give reasons for apportionment but the apportionment was upheld as it was not unreasonable or plainly unjust. That is because the process of value judgment does not admit of mathematical precision; rather, as set out by the High Court in Podrebersek, a decision on apportionment is:
… a finding upon a "question not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v MacGregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed (532).
(See also Pennington v Norris (1956) 96 CLR 10 at 16; Manly Council v Byrne [2004] NSWCA 123 [103] ‑ [105]).
The Committee in its reasons identified a number of acts for each of MPL, WKG and WASE which contributed to the contamination of the WASE site. There is no significance in the fact that the Committee used the words 'contamination' and 'pollution' effectively interchangeably. The use of the expression 'relative significance of the acts contributing to the pollution' does not indicate that the Committee applied some different test to that required by s 25(3). The expression is nothing more than a paraphrase of the statutory test. Having made the findings which it did, the Committee necessarily had to establish the extent to which the individual entities caused or contributed to the contamination. That required a value judgment, not susceptible to mathematical precision. There is nothing which would suggest that the apportionment which the Committee settled upon was plainly unjust or unreasonable so as to give rise to an inference of error.
There is no merit in ground 4.

Conclusion on GDA 4 of 2014

Coffey has not made out any of the four grounds of appeal, and the appeal in relation to the WASE decision should be dismissed.

Appeals GDA 2 and 3

There are five grounds of appeal in relation to the Sadler decision and the Road Reserve decision. In essence, the Committee's decision in both the Sadler decision and the Road Reserve decision was based on the proposition that contamination of the Road Reserve and the Sadler sites was wholly attributable to the migration of contaminant from the WASE site, and that s 27 of the CS Act had the effect that those liable for contamination of the WASE site were, in turn, liable for contamination of the other two sites.
The fifth ground of appeal in each of GDA 2 and GDA 3 repeats the four grounds of appeal in GDA 4, since Coffey contends that the errors which the Committee made in relation to the WASE site infected its decision in relation to the other two sites. For the reasons that I have determined that the appeal in GDA 4 should not succeed, ground 5 in each of GDA 2 and GDA 3 is not made out.
Ground 1 in each of GDA 2 and GDA 3 is that the Committee misconstrued and misapplied s 27 of the CS Act. Grounds 2, 3 and 4 in each appeal are, essentially, based on the same proposition. The question for determination in each of GDA 2 and GDA 3 is, therefore, whether the Committee erred in law by applying s 27 of the CS Act to determine the responsibility of Coffey for remediation of the Road Reserve and the Sadler sites. It is clear that it did.
In each matter, the Committee said:[27]
As the responsibility for remediation of the source site has already been determined in a previous decision, the Committee need only consider (in accordance with s 27 of the Act) the extent to which contamination of the affected site has been caused by migration of contamination from the source site.
Causing or allowing pollution in the form of hydrocarbon contamination to migrate from the source site to the subject site was an act done without lawful authority pursuant to s 49(3) of the EP Act.
As all contamination at this site has been caused by migration of contaminated groundwater from beneath the service station at the source site, the Committee has concluded that the persons who caused and/or allowed contamination to occur at the source site also caused and/or allowed contamination to occur at the subject site, with the same shares applying.
[27] Sadler decision [30] ‑ [32]; Road Reserve decision [32] ‑ [34].
Section 27 of the CS Act deals with the responsibility of the landowners for remediation. Section 27(1) and s 27(2) deal with the responsibility of an owner of a site for remediation of that site. Section 27(2a) provides:
(2a)A person who, under subsection (1) or (2), is responsible for remediation of a site that is a source site is also responsible for remediation of a site that is an affected site to the extent that ‑
(a)the contamination of the affected site is caused, or contributed to ‑
(i)by contamination; or
(ii)by a substance,
which has migrated to the affected site from the source site;
The balance of s 27 is not relevant for present purposes.
The Committee did not identify which subsection of s 27 it was referring to in the passage of its reasons set out above. Presumably, the Committee was relying on s 27(2a). Neither Coffey nor WKG are owners of the WASE site, being the source site in relation to the contamination of the Road Reserve and the Sadler sites. Section 27 can have no application to either of them. The only basis for their liability would be if they were found to be a person responsible for remediation pursuant to s 25(3) in relation to the affected sites.
It was thus necessary for the Committee to consider responsibility for remediation of the affected sites under s 25(3). The Committee did not undertake that assessment in relation to the Sadler site or the Road Reserve site.
Coffey made submissions to the Committee alleging that WASE should bear a greater proportion of the responsibility for contamination of the Sadler site and the Road Reserve site. The Committee was bound to give consideration to those submissions in the context of considering liability under s 25(3). By miscontruing s 27 as not requiring a separate consideration of responsibility for remediation of each of the Sadler site and the Road Reserve site under s 25(3), the Committee was in error. While that may be that, had the Committee applied the correct statutory test and considered responsibility for remediation under s 25(3), it may have reached the same conclusion, it may also be the case that, having regard to the submissions of the parties in relation to the attribution of responsibility for remediation of the affected sites, it may have come to a different conclusion.

In the circumstances, each of the appeals in GDA 2 and GDA 3 should be allowed and the Sadler decision and the Road Reserve decision should be remitted to the Committee for reconsideration pursuant to s 78(1)(c) of the CS Act.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: COFFEY LPM PTY LTD -v- THE CONTAMINATED SITES COMMITTEE [2014] WASC 504 (S)

CORAM: CHANEY J

HEARD: ON THE PAPERS

DELIVERED : 25 JUNE 2015

FILE NO/S: GDA 4 of 2014

BETWEEN: COFFEY LPM PTY LTD
Appellant
AND
THE CONTAMINATED SITES COMMITTEE
First Respondent
WA SEAFOOD EXPORTERS PTY LTD
Second Respondent
WESFARMERS KLEENHEAT GAS PTY LTD
Third Respondent
CALTEX AUSTRALIA PETROLEUM PTY LTD
Fourth Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
MINISTER FOR ENVIRONMENT
Interveners

ON APPEAL FROM:
Jurisdiction              :  CONTAMINATED SITES COMMITTEE
Coram  :J MALCOLM CP AND OTHERS
File No  :CSC 19 of 2008

Catchwords:

Costs - Respondent adopting submissions of another party - Successful party - Notice of contention misconceived

Legislation:

Contamination Sites Act 2003 (WA), s 77, s 78(2)
Rules of the Supreme Court 1971 (WA), O 66 r 1

Result:

Appellant to pay fourth respondent's costs excluding costs related to notice of contention

Category: B

Representation:

Counsel:

Appellant:     No appearance
First Respondent           :     No appearance
Second Respondent       :     No appearance
Third Respondent         :     No appearance
Fourth Respondent        :     No appearance
Interveners                   :     No appearance

Solicitors:

Appellant:     SRB Legal
First Respondent           :     No appearance
Second Respondent       :     DLA Piper
Third Respondent         :     Hardy Bowen
Fourth Respondent        :     Solomon Brothers
Interveners                   :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221
Coffey LPM Pty Ltd v The Contaminated Sites Committee [2014] WASC 504
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

CHANEY J: On 23 December 2014, I published reasons for my decision that the appeal in this matter should be dismissed.[28]
[28] Coffey LPM Pty Ltd v The Contaminated Sites Committee [2014] WASC 504.
The fourth respondent was the only respondent which appeared in opposition to the appeal at the hearing of the matter. In doing so, it relied substantially upon the submissions made by the intervener in opposition to the application, save as to one point in respect of which it disagreed with the intervener's submissions. In addition, the fourth respondent made submissions in relation to contentions contained in a document entitled 'Notice of Contention' which it had filed in the proceedings in July 2014. On delivery of the decision, the fourth respondent sought an order for payment of its costs, and I directed that the question of dismissal of the fourth respondent's notice of contention and of payment of the fourth respondent's costs, and any costs related to the notice of contention was to be determined on the papers. The parties had subsequently filed written submissions on that question.

General principles concerning costs orders

Section 78(2) of the Contaminated Sites Act 2003 (WA) (CS Act) states that the court may make such order as to costs as it thinks fit in relation to an appeal. Section 77 of the CS Act, being the provision under which the appeal was brought, provides that 'an appeal is to be made in accordance with the rules of court of the Supreme Court'. Order 66 r 1 of the Rules of the Supreme Court 1971 (WA) provides that costs are in the discretion of the court but, without limiting this general discretion, the court will generally order that the successful party to an action or matter recover its costs. This discretion must, of course, be exercised judicially.[29]
[29] Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [21] - [22], [134].

Parties' submissions

The fourth respondent submits that its contentions in the proceedings fall into three categories. The first was its opposition to the appeal generally. The second was a contention that, if any of the grounds of appeal were successful, the decision of the Contaminated Sites Committee (the Committee) should only be set aside in part, so as to leave intact the Committee's findings that the fourth respondent had no responsibility for remediation. The third category comprised the matters relied upon in the 'Notice of Contention'. It submits, correctly, that the second and third of those categories of contentions did not, in the event, fall for consideration in view of the dismissal of the appeal.
On that basis, the fourth respondent contends that, the appeal having been dismissed, it was a successful party to the appeal for the purposes of O 66 r 1.
The appellant opposes any order for costs in favour of the fourth respondent. It submits that the fourth respondent's 'Notice of Contention' was misconceived. It contends that the Court could never have had capacity to partially remit that matter to the Committee so that the second contention could not have been successful. Finally, the appellant contends that the fourth respondent's substantial opposition to the appeal consisted merely of supporting the submissions of the interveners other than in respect to one point in which it supported the appellant's position, being a point upon which the appellant did not ultimately succeed. On those bases, the appellant contends that no order for costs in the fourth respondent's favour should be made.

Misconception

I agree with the appellant's submission that the 'Notice of Contention' filed by the fourth respondent was misconceived. An appeal under s 70 of the CS Act is an appeal on a question of law. As I noted in the substantive decision in this matter, in an appeal of this nature the Court is neither required nor entitled to embark upon any review of the decision‑making process of the Committee beyond that necessary to answer the appropriately identified question or questions of law.[30]
[30] Coffey LPM Pty Ltd v The Contaminated Sites Committee [2014] WASC 504 citing BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221 [46] (Martin CJ).
The fourth respondent was, however, entitled to appear at the hearing to oppose the appeal generally. It was a party to the appeal. Although the appeal was not directed to challenging the findings which absolved the fourth respondent from responsibility for remediation, the possibility of remission of the matter to the Committee had the potential to reopen all questions of liability for remediation, and thus the potential to prejudice the fourth respondent's position.
The fact that the fourth respondent, in substance, simply relied upon the contentions of the intervener does not deprive it of any entitlement to a favourable costs order. Directions were made in advance of the hearing requiring submissions to be filed first by the appellant, then by the intervener, and then by any of the respondents who wished to be heard on the appeal. There can be no criticism of the fourth respondent for simply adopting the intervener's submissions rather than covering the same ground in its own submissions.
The fact that the second and third respondents chose not to file submissions and further participate in the appeal did not oblige the fourth respondent to take the same course. Nor did the fact that it substantially adopted the intervener's submissions in opposition to the appeal deprive it of the entitlement to attend the hearing and make whatever oral submissions it wished in light of the submissions advanced orally by the appellant and the intervener.
I do not consider that the fact that the fourth respondent supported the appellant's arguments in relation to a discrete issue bears upon the question of costs. As it happened, it was not an issue which I found necessary to resolve, having regard to the basis upon which the relevant grounds of appeal were dismissed.
In the circumstances, the fourth respondent was a successful party in opposing the appeal. There should be an order that the appellant pay its costs. Those costs should not, however, include any costs in relation to the notice of contention which, as I have said, was misconceived.
There will be an order that the appellant is to pay the fourth respondent's costs, not including any costs in relation to the fourth respondent's notice of contention, to be taxed if not agreed.