Corke v Corke

[1994] FCA 944

JUDGMENT NO. ........ ....,,...J 994 CiLf- , . , , W- , ,

FEDERAL COURT OF AUSTRALIA

NEW SOI]TtI WALES REGISTRY	-	NO NG 536 of 1994
GENERAL DIVISION

TASWAWIAN CONSERVATION

TRUST

IN~ORPORATED

Applicant

AND:

MINISTER FOR RESOURCES AUD

ANOR

Respondent

CORAMa SACllVILLE J.

PLACE a SYDNEY

DATE I 17 - R 1994

HIS HONOUR: Mr Basten has tendered a statement contained in a paragraph of a letter dated 10 January 1994. That letter is addressed to the executive director of the Australian Heritage Commission and it is signed by Mr Ross Dalton who is described as acting assistant secretary, forests branch, land resources division. The statement that is tendered consists of two sentences. The first refers to the sources of saw logs to be processed by Gunns which is the second respondent in the present proceedings. That statement asserts that the sources are the same as those considered for two licences granted to two other companies.

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The second sentence states a belief framed with the words "we believe". The belief expressed is that should the Minister issue a licence to Gunns, including the export of wood chips from logs harvested from certain National Estate areas, there would be an adverse effect on the National Estate in relation to logging operations and hence he would need to formally consult with the you, that is with the Austranlian Heritage Commission, in

. .

accordance with 8.30 of the Australian Commiss~on Acf

1975. Although some argument was directed to the possible application of s.7B of the Evidence Act 1905 (Cth) as the basis for supporting the admissibility of this statement in the letter,

Mr Basten ultimately rested his submission on the proposition

that the statements should be regarded as admissions, admissible as such as against the Minister, but not as against the second respondent. Technically speaking, that would produce the consequence that the statement would be admissible against the first respondent only but not against the second respondent. As Mr Hale has pointed out it may be that that is a distinction that will be more theoretical than practical in its application to the circumstances of this case. Be that as it may, I should deal with the matter as a suggested admission.

Mr Basten referred to the decision of Smiles v Commissioner of

m a t i o n (1992) 35 FCR 405, at 414, in support of his proposition that Mr Dalton should be taken as having authority to make an admission on these matters as against the interests of the Minister. In that case it was held by Davies J. that a Mr Mitchell, who was found to be the person in charge of the

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prosecution of Mr Smiles on behalf of the Australian Taxation Office was in a position to make an admission as to the reasons for the institution of the p&secution. Mr Basten submitted that

M1: Dalton was in a similar position vis a vis the Minister in the

present case. Mr Heydon pointed out that, in other material in

evidence, Mr Dalton is referred to as the contact officer.

Mz: Heydon submitted that there was nothing in the material to

suggest that Mr Dalton had specific authority to make admissions on these matters on behalf of the Minister. The evidence shows that Mr Dalton who is described as Acting Aesistant Secretary, has signed a letter to another statutory authority expressing opinions on issues, or alternatively, making assertions of fact. In my view, Mr Dalton, at least on the limited material available to me, should be taken as having authority to make admissions on behalf of the Minister on factual matters connected with the application. The application was the subject of consideration by him and connected with the applications he prepared or at least signed correspondence.

I therefore think that, although the position is not precisely the same as that in Smiles case, there is enough for me to draw the inference that Mr Dalton had authority on behalf of the Minister to make admissions on matters such as the sources of saw logs. In my opinion the statement in the first sentence is a statement as to a matter of fact. It may be that a question will arise as to the weight that ought to be placed upon that statement because as yet at any rate, nothing appears as to the

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source of information available to Mr Dalton. Nonetheless, Mr Dalton, in what I assume is considered correspondence, has made an assertion of fact. There26 no reason to think that he would not have had material available allowing him in order to make that statement of fact in correspondence. Accordingly, I admit the first sentence in the statement that has been tendered by Mr Basten, as an admission against the Minister.

I think the second sentence, however, falls into a different category. In that second sentence, Mr Dalton expresses an opinion. The opinion does not relate to the impact of the proposal upon the whole of the environment affected by the proposal. It must be remembered that the statement has been tendered in order to establish the proposition, or at least as tending to establish the proposition that the proposal as put forward would affect the environment to a significant extent, to

use the language of S. 5 ( 1) of the &)vironment Protection I ImDact

Q£ Pro~osalsl AEf; 1974.

Mr Hale, on behalf of the second respondent, has pointed out that the test specified in s.30(3) of the Australian Heritaae

. .

1975, uses a different language. That subsection refers to action that "might affect" to a significant extent a place that is in the register as part of the National Estate. The expression of opinion in the statement sought to be tendered relates essentially to the operation of the National Estate and, in particular, to the operation of 8.30 of the Australian m i t a a e Commission Act 1975. Furthermore, the expression of

view relates to heritage areas which form a part, and for all I know a small part, of the area that is affected by the proposal.

I think that in certain circumstances an expression of an opinion

as to the impact of a proposal, where that opinion is expressed by a senior officer of the department, can be admissible against the Minister. However, I do not ihink that, in the circumstances of this case, the opinion expressed by Mr Dalton is admissible against the Minister for the purpose relied on by Mr Basten. It seeme to me that the matters dealt with in the expression of opinion are tangential to the matters that Mr Basten's client needs to establish in order to deal with the jurisdictional fact argument.

Mr Heydon contended that the statement of Mr Dalton amounted to

an expression of opinion on the ultimate issue in the case and was inadmissible for that reason. I doubt that that of itself would be a ground for rejecting the statement as tendered. In my opinion the statement does not go to the ultimate issue in this case, but rather to an issue that might be relevant in proceedings under the Australian Heritaae Commission Act 1974. However, any issue under that Act no longer plays a part, directly at least, in these proceedings.

For the reasons that I have given, I reject the tender of the second sentence in the paragraph on page 247. I allow the first sentence.

I certify that this and the preceding 5

pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

I

Associate: ; jt fc. 2 1

/l

Dated: 2 December, 1994

Heard :

17 November, 1994

Place:

Sydney

Decision:

17 November, 1994

Appearances:

Mr Basten QC and Mr Williams, instructed by

the Environmental Defender's Office,

appeared for the applicant.

Mr Heydon QC and Mr Comans, instructed by the Government Solicitor, appeared for the first respondent.

Mr Hale, instructed by Dunhill, Madden,

Butler, Solicitors, appeared for the second respondent.