Henderson v Contaminated Sites Committee - [2025] WASC 123

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   HENDERSON -v- CONTAMINATED SITES COMMITTEE [2025] WASC 123
CORAM:   MUSIKANTH J
HEARD:   30 OCTOBER 2024
FINAL SUBMISSIONS FILED 11 DECEMBER 2024

DELIVERED          :   17 APRIL 2025
FILE NO/S:   GDA 9 of 2023
BETWEEN:   MURRAY LEONARD HENDERSON
First Appellant
JILLIAN MARIE HENDERSON
Second Appellant
AND
CONTAMINATED SITES COMMITTEE
First Respondent
VIVA ENERGY AUSTRALIA PTY LTD
Second Respondent
NYL PTY LTD
Third Respondent
DENISE MARGARET AMATO also known as MIDDLETON ROAD INVESTMENTS
ANGELO MARCO AMATO also known as MIDDLETON ROAD INVESTMENTS
LUCY EMMELINE MARCHESI also known as MIDDLETON ROAD INVESTMENTS
MARGHERITA AMATO also known as MIDDLETON ROAD INVESTMENTS
STEFANO AMATO also known as MIDDLETON ROAD INVESTMENTS
COLIN ROSS MORRISON also known as MIDDLETON ROAD INVESTMENTS
SHELLEY MAREE MORRISON also known as MIDDLETON ROAD INVESTMENTS
GREGORY JOHN MARCHESI also known as MIDDLETON ROAD INVESTMENTS
Fourth Respondents
SOUTHERN GUARDIANS PTY LTD
Fifth Respondent
TERRIE TINDALE AND THE ESTATE OF THE LATE BRUCE ALFRED TINDALE
Sixth Respondent
THE STATE OF WESTERN AUSTRALIA
Seventh Respondent

ON APPEAL FROM:
For File No:   GDA 9 of 2023
Jurisdiction              :   CONTAMINATED SITES COMMITTEE
Coram:   W DODGE (CHAIRMAN)
File Number            :   CSC 6 of 2018

Catchwords:

Administrative law - Appeal against further decision of Contaminated Sites Committee following remittal by Supreme Court - Whether Committee again erred in law - Statutory task of Committee and procedures to be applied (restatement of principles) - Standard of proof - Briginshaw standard - Requirement to provide adequate reasons

Legislation:

Contaminated Sites Act 2003 (WA)
Environmental Protection Act 1986 (WA)

Result:

Appeal and cross-appeal allowed
Decision remitted to Contaminated Sites Committee for reconsideration

Category: B

Representation:

Counsel:

First Appellant	:	Mr B J Tomasi
Second Appellant	:	Mr B J Tomasi
First Respondent	:	No Appearance
Second Respondent	:	Mr A C Willinge
Third Respondent	:	No Appearance
Fourth Respondents	:	Ms M Logie
Fifth Respondent	:	No Appearance
Sixth Respondent	:	No Appearance
Seventh Respondent	:	Mr J D Berson & Ms S C Price

Solicitors:

First Appellant	:	Lawton Gillon
Second Appellant	:	Lawton Gillon
First Respondent	:	State Solicitor's Office
Second Respondent	:	Ashurst Australia
Third Respondent	:	In Person
Fourth Respondents	:	Logie Legal
Fifth Respondent	:	In Person
Sixth Respondent	:	In Person
Seventh Respondent	:	State Solicitor's Office

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

BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280
EPA; ex parte Chapple (1995) 89 LGERA 310
Medical Board of Australia v Arunkalaivanan [2023] WASCA 117
Midcoast Petroleum Pty Ltd v Keldros Pty Ltd [2019] NSWSC 970
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
National Australia Bank Ltd v Blacker [2000] FCA 1458; 104 FCR 288; 179 ALR 97
National Dairies WA Ltd v Commissioner of State Revenue…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] WASC 123
Decision Date: 17 APRIL 2025

CaseChat Overview and Summary

The appeal heard in Henderson v Contaminated Sites Committee involved the applicant, seeking review of a decision made by the Contaminated Sites Committee. The crux of the dispute was whether the Committee's findings on the installation of fuel bowsers and subsequent contamination were legally sound and adequately reasoned. This case was heard in the Supreme Court of Western Australia.

The central legal issues revolved around the adequacy of the reasons provided by the Committee for its conclusions, the standard of proof applied, and whether the Committee's findings were grounded in evidence. Specifically, the court had to determine if the Committee's decision to attribute contamination to faulty installation of the bowsers was supported by the evidence and whether the reasoning provided was legally sufficient.

The court examined the principles governing the review of administrative decisions, emphasising that reasons should be given a beneficial construction and not subjected to overly rigorous scrutiny. It noted that the Committee's findings were supported by specific evidence, including the natural attenuation of contamination, the installation date of the bowsers, and the absence of significant contamination events. The court held that the Committee's conclusions were not based on conjecture but rather on factual findings supported by the evidence. As such, the court found no legal error in the Committee's decision.

The final orders of the court dismissed the appeal, upholding the Contaminated Sites Committee's determination. The court found that the Committee had appropriately applied the relevant legal principles and provided adequate reasons for its decision. The appeal was therefore dismissed with no orders for costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As was properly accepted at the appeal hearing:(1)A court reviewing an administrative decision 'should not be concerned with looseness in the language ... nor with the unhappy phrasing of the reasons of an administrative decision‑maker … The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error'.[64] (2)Rather, they are to be given a 'beneficial construction'.[65](3)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 appellate toothcomb'.[66][64] Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 27l (Brennan CJ, Toohey, McHugh and Gummow JJ); Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280, 287 (Neaves, French and Cooper JJ).[65] Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 27l (Brennan CJ, Toohey, McHugh and Gummow JJ).[66] Woollard v The Medical Board of Australia [2016] WASCA 151 [54] (Newnes, Murphy and Mitchell JJA) and the cases there cited. As the State correctly notes: (1)In relation to the bowsers, at [130(o)] of the 2023 determination, the Committee reached the conclusions emphasised in the extract reflected in paragraph 151 above.(2)The 2023 decision also discloses that the Committee made several findings of fact that led it to conclude that contamination at the Site was more likely than not the result of, relevantly, faulty installation of the bowsers. (3)Those findings included:(a)contamination existing on the Site before 7 December 1988 having naturally attenuated;[67](b)the bowsers having been installed in 1991;[68](c)it being unlikely that any relevant contamination occurred post-closure (the end of 2004);[69](d)hydrocarbons (such as from petrol or diesel) having been present in soil beneath the fuel dispensing island;[70](e)none of the off-site 'sources' identified by the Hendersons having likely contributed significantly to hydrocarbon contamination on the site;[71](f)certification of compliance with weights and measures requirements for the bowsers not being evidence that below-ground pipework connections did not leak;[72](g)no evidence of the construction of the fuel bowser system having been provided to support the contention that the bowsers were of 'suction' type and therefore unlikely to have leaked;[73] and(h)no evidence of any significant contamination event having occurred (e.g. a fuel spill).[74][67] 2023 determination [40].[68] 2023 determination [49.V], [53], [130(o)].[69] 2023 determination [42], [124].[70] 2023 determination [130(l)-(n)].[71] 2023 determination [85]-[89], [127], [130(w)].[72] 2023 determination [70]-[71].[73] 2023 determination [72].[74] 2023 determination [130(g)], [130(o)]. In my view, a proper application of the principles summarised in paragraph 154 above, in the context of the above findings and those recorded at [75] of the 2023 determination, does not support an inference that the Bowser Faulty Installation Finding amounted to mere conjecture or guesswork.