Energie Future NL v Commonwealth-New South Wales Offshore Minerals Joint Authority
[2011] FCA 818
•20 July 2011
FEDERAL COURT OF AUSTRALIA
Energie Future NL v Commonwealth-New South Wales Offshore Minerals Joint Authority [2011] FCA 818
Citation: Energie Future NL v Commonwealth-New South Wales Offshore Minerals Joint Authority [2011] FCA 818 Parties: ENERGIE FUTURE NL v COMMONWEALTH-NEW SOUTH WALES OFFSHORE MINERALS JOINT AUTHORITY File number: NSD 540 of 2011 Judge: FOSTER J Date of judgment: 20 July 2011 Legislation: Administrative Decisions (Judicial Review) Act1977 (Cth), ss 5, 11 and 13 Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited Date of hearing: 20 July 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 18 Counsel for the Applicant: Ms L Clegg Solicitor for the Applicant: Beswick Lynch Lawyers Solicitor for the Respondent: Ms C Kelso of Norton Rose Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 540 of 2011
BETWEEN: ENERGIE FUTURE NL
ApplicantAND: COMMONWEALTH-NEW SOUTH WALES OFFSHORE MINERALS JOINT AUTHORITY
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
20 JULY 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.ORDERS that the time within which the applicant might file an Application for an Order for Review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the decision of the respondent given on 7 January 2011 to refuse to grant four Mineral Exploration Licence Applications as specified in the Application filed herein be extended up to and including 3 August 2011.
2.GRANTS leave to the applicant to file and serve an Amended Application by 3 August 2011.
3.NOTES that the Amended Application referred to in par 2 above will include the joinder of “Sydney Basin UCG Pty Ltd (formerly Energie Future Pty Ltd)” as the second applicant and that it is proposed by the applicant that the Amended Application will include grounds of judicial review under s 39B of the Judiciary Act 1903 (Cth).
4.ORDERS the respondent to provide to the applicant by 12 August 2011 a copy of any legal advice, including any formal opinion or memorandum or file note or any other document reflecting the “legal advice” referred to in the bundle of relevant documents at RD 164, 170, 195, 197, 199, 208, 220 (par 20 of the Statement of Reasons), the “further legal advice” referred to at RD 192, and the agenda paper referred to at RD 170 referring to legal advice but reserves to the respondent any claim for client legal privilege which it might be minded to make.
5.In the event that the respondent wishes to make a claim for client legal privilege in respect of any documents covered by order 4 above, ORDERS the respondent’s legal representatives to notify the applicant’s legal representatives as soon as practicable of the precise claim for client legal privilege which it wishes to make and of the basis for such claim.
6.GRANTS to all parties liberty to apply in respect of any claims for client legal privilege made by the respondent, and generally, upon three days’ notice or upon such shorter notice as a Judge of the Court might allow.
7.ORDERS that the costs of the Notice of Motion filed by the applicant on 10 June 2011 be costs in the proceeding.
8.DIRECTS the respondent to file and serve by 2 September 2011 any evidence upon which it proposes to rely at the final hearing of the proceeding.
9.ORDERS the applicant to file and serve by 14 October 2011 an Outline of Written Submissions in support of the Application.
10.ORDERS the respondent to file and serve by 24 October 2011 any Submissions in Reply.
11.ORDERS that the proceeding be listed for directions before Foster J at 9.30 am on 5 October 2011.
12.ORDERS that the Application be set down for final hearing before Foster J at 10.15 am on 28 October 2011.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 540 of 2011
BETWEEN: ENERGIE FUTURE NL
ApplicantAND: COMMONWEALTH-NEW SOUTH WALES OFFSHORE MINERALS JOINT AUTHORITY
Respondent
JUDGE:
FOSTER J
DATE:
20 JULY 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 28 April 2011, the applicant filed in this Court an Application for an Order for Review in respect of a decision of the respondent to refuse to grant four mineral exploration licence applications to the applicant. The applicant currently relies upon s 5 of the Administrative Decisions (Judicial Review) Act1977 (Cth) (the ADJR Act) although it has given notice that it also proposes to rely upon s 39B of the Judiciary Act 1903 (Cth). The application which the applicant has made should have been filed by no later than 27 April 2011. It was therefore filed one day after the time by which it should have been filed. In these circumstances, the respondent filed a Notice of Objection to Competency on 2 June 2011. The respondent took the point in that Notice that the Application had been filed outside the period prescribed for the making of an application for an order for review under s 11(1)(c) and s 11(3) of the ADJR Act.
By a Notice of Motion filed on 10 June 2011, the applicant sought an extension of the time within which to lodge its Application. The applicant’s application for an extension of time was supported by two affidavits, one of Richard Mark Somerton, sworn on 10 June 2011, and one of Timothy James Lynch, sworn on 10 June 2011. Mr Lynch is the solicitor for the applicant. He said that he received instructions to file the Application in this proceeding late in the afternoon of 27 April 2011 and that, in the circumstances, he was not able to prepare and file the Application on that day but managed to do so the following day (28 April 2011).
In his affidavit, Mr Somerton gave an account of the dealings which he had in coming to a decision to file the present Application. It is not necessary to traverse the detail of that affidavit beyond recording that, by 29 March 2011, the applicant had received the Statement of Reasons provided by the respondent pursuant to s 13 of the ADJR Act and thereafter diligently set about considering those Reasons and attempting to come to a decision as to whether or not the present Application would be filed.
In paragraphs 11 and 12 of Mr Somerton’s affidavit, Mr Somerton said:
11.In the period between 29 March 2011 and 28 April 2011 I took the following steps in order to consider the prospects of an application for review of the Respondent’s decision:
(a)reviewed the statement of reasons provided by the Respondent and conducted an on-line research in an attempt to understand and evaluate the grounds for refusal;
(b)sought legal advise [sic] as to the merits of an application for an order of review;
(c)advised ENFL shareholders about the statement of reasons and sought their opinion about how to proceed;
(d)explored what other options are available to EFNL in order to pursue its plan to explore for the existence of coal in the Sydney Basin area;
(e)considered the financial position of EFNL to decide whether it is in the company’s best interest to commence proceedings in the Federal Court for an order for review.
12.The Easter and Anzac Day public holidays this year fell on 22 to 26 April 2011, postponing the last day to apply for an order from 26 April 2011 to 27 April 2011. I obtained shareholders approval to file an application for an order for review on 27 April 2011.
At all times up until 11 July 2011, the application for an extension of time was opposed by the respondent. When the matter was called on this morning, I was informed by the legal representative of the respondent that the respondent’s position now was that the question of whether or not an extension of time should be granted was a matter for the Court and that the respondent neither opposed nor consented to the grant of the extension which was sought. Apparently, the respondent’s legal representatives had conveyed that position to the applicant’s legal representatives on 11 July 2011.
The period of delay in the present case is one day only. Mr Somerton has, in my view, adequately explained why it was that the Application was filed one day late. I accept his explanation. The subject matter of the proceeding is significant to the applicant and it seems to me that not to grant the extension would visit a very serious injustice upon the applicant for what, in the end, was a delay of very short duration.
In all the circumstances, I am satisfied that the extension of time within which to file the present Application sought by the applicant should be granted.
The respondent seeks the costs of the application for an extension of time. In support of its contention that its costs should be paid by the applicant in respect of that matter, the respondent referred me to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. In that case, it is apparent that the delay was significant, being of the order of one year. Nonetheless, Wilcox J granted the extension of time. When dealing with the question of costs, his Honour said:
In the normal course an applicant for extension of time under s 11 should pay the costs incurred by the respondent in relation to the application. This is the general provision of the Federal Court Rules in relation to an application for an extension of time under the Rules: see O 62 r 23 and L Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd (1978) 19 ALR 621 at 629–630 relating to the corresponding provision of the High Court Rules. I see no reason to distinguish between a case of an application for extension of time limited by the Rules and a case, such as the present, in which the applicant seeks an extension of the time limited by an Act.
His Honour’s remarks encapsulate the approach which the Court should generally take to the question of costs in matters such as the present. Having made those observations, his Honour ordered the applicant, which had sought the extension of time in the case before him, to pay the respondent’s costs of that application.
It is true, as the respondent’s representative submitted, that O 62 r 23 provides that, where a party applies for an extension of time, that party shall, unless the Court otherwise orders, pay the costs of and occasioned by the application or any order made on or in consequence of the application. The terms of the rule reflect a bias in favour of ordering costs against an applicant seeking an indulgence of the kind sought by the applicant here, although the terms of the rule also make perfectly clear that the Court retains a discretion in exercising its power to award costs in circumstances such as the present.
It may be thought that the respondent’s original position of opposing the grant of an extension of time was unreasonable, given that the delay was only one day. I must say that, in the current setting in which litigation is now conducted, it might have been preferable for the respondent simply to have consented to the extension so that the substance of the applicant’s complaints could be addressed. On the other side, as was submitted by Counsel for the applicant, it may be thought that the applicant should get its costs of the present Application given the time and trouble to which it had been put about one’s day delay.
I think that the proper order for costs in respect of the present Application is that they be costs in the proceeding. I say that because the applicant did, after all, file its Application late and would have had to satisfy the Court, in any event, as to the desirability of the Court extending the time within which its Application should have been made. In addition, the respondent, it seems to me, has not added to the costs of the exercise although, as I have already mentioned, it might have been better if it had taken a position which was more realistic earlier than it, in fact, did.
For those reasons, I propose to make an order that the costs of the Notice of Motion filed by the applicant on 10 June 2011 be costs in the proceeding.
During the course of argument this morning, the applicant submitted to the Court draft Short Minutes of Order setting out what the applicant considered to be an appropriate program for preparing the case for final hearing. I do not need to address most of the orders sought in that document, although order 2 raises some issues which should be briefly addressed. By order 2, the applicant seeks an order that the respondent provide a copy of all of the legal advice which, in effect, the applicant contends was an actuating factor in the decision of the respondent under challenge in the present proceeding.
It is clear when one looks at the Statement of Reasons furnished by the respondent to the applicant that some legal advice provided to the respondent is in that category. The legal representatives of the respondent have helpfully identified the legal advice specifically covered by the reference to “legal advice” in par 20 of the Statement of Reasons, but are not in a position (and I make no criticism about this because the matter was only raised late yesterday) to inform the Court whether the record of the additional legal advice referred to in the proposed order is something that the respondent is prepared to produce. Given the terms of the order, I think that no question of client legal privilege probably now arises or, at least, that seems to me to be the case at the moment.
I think that, in order to progress the matter in readiness for final hearing, I should make the orders sought in paragraph 2 but reserve to the respondent a capacity to assert any claim for client legal privilege which it might be minded to make once it has had a fair opportunity to consider the true import of order 2. I will make provision for that in the orders which I propose to make.
I will otherwise make the orders sought in the Short Minutes of Order proposed by the applicant and fix the matter for final hearing on 28 October 2011.
There will be orders accordingly.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 21 July 2011
0
2
1