Mees v Kemp

Case [2005] FCAFC 5

FEDERAL COURT OF AUSTRALIA

Mees v David Kemp in his capacity as Minister for the Environment
and Heritage [2005] FCAFC 5

ADMINISTRATIVE LAW – judicial review – reasons for decision – Administrative Decisions (Judicial Review) Act 1977 (Cth) - sufficiency of reasons – whether reasons incomplete – whether time for filing application began to run – discretionary refusal to extend time unchallenged – statutory provision for reconsideration of impugned decision – contingent upon satisfaction of availability of substantial new information – requirements of state of satisfaction – whether information – whether new

ENVIRONMENT LAW – Environmental Protection and Biodiversity Conservation Act 1999 (Cth) – referral of proposed action – decision that proposed action not controlled action – reasons for decision – adequacy – freeway project – no reference to likelihood of consequential decision to construct additional link – no reference to Minister’s view that likelihood of consequential decision irrelevant – whether reasons misleading – reconsideration of decision – requirement for satisfaction of substantial new information – satisfaction of Minister – whether information – whether new

WORDS AND PHRASES – ‘information’ 

Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 3, s 523, s 67, s 68, s 75, s 78
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11, s 13, s 3(1)
Acts Interpretation Act 1901 (Cth) s 25D

Shorter Oxford English Dictionary, 5th Edition OUP 2002

Mees v Roads Corporation [2003] FCA 306 cited
Mees v Roads Corporation [2003] FCA 410 cited
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 cited
Comcare v A’Hearn (1993) 45 FCR 441 cited
Westwood v Human Rights and Equal Opportunity Commission [2004] FCA 153 cited
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 cited
ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197 cited
Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 cited
Ansett Transport Industries (Operations) Ltd v Secretary, Department of Aviation (1987) 73 ALR 193 cited
Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 cited
Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 cited
Minister for the Environment and Heritage v Queensland Conservation Council Inc [2004] FCAFC 190 cited
WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 cited
Goldie v The Commonwealth (2002) 117 FCR 566 cited
Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Ling (1996) 185 CLR 259 cited
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited

PAUL ANDREW MEES v DAVID KEMP in his capacity as Minister for the Environment and Heritage and SOUTHERN AND EASTERN INTEGRATED TRANSPORT AUTHORITY
V 641 OF 2004

FRENCH, MERKEL and FINKELSTEIN JJ
11 FEBRUARY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA AUSTRALIA DISTRICT REGISTRY

Continue reading Mees v Kemp

Sign in free to access the full text

Details
AGLC
Mees v Kemp [2005] FCAFC 5
Case
[2005] FCAFC 5
Decision Date

CaseChat Overview and Summary

The case of Mees v Kemp involved a dispute concerning the adequacy of reasons provided for a decision under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) and the sufficiency of reasons required under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The appellant, Mees, challenged a decision made by the Minister, who determined that a proposed action by the Victorian Government to construct a freeway was not a 'controlled action'. The appellant argued that the Minister failed to consider the secondary or indirect effects of the proposal, as advised by the Department, and that the decision's reasons were misleading. The case also examined the statutory requirement for reconsideration of the decision based on the availability of substantial new information.

The primary legal issues in the case included whether the reasons provided by the Minister were sufficient and complete, whether the time for filing an application under the ADJR Act had expired, and whether the Minister's satisfaction with the availability of substantial new information warranted reconsideration of the decision. The court needed to determine whether the reasons were misleading and whether the Minister's satisfaction of substantial new information was justified.

The court found that the reasons provided by the Minister were not misleading as they did not refer to the possibility of an Eastern Freeway-Greensborough link being built, which the appellant believed was relevant. The court also held that the time for filing an application under the ADJR Act had expired and the appellant's application was brought outside the time limit. Furthermore, the court found that the Minister was satisfied that there was no substantial new information warranting reconsideration of the decision. The court concluded that the Minister's satisfaction was reasonable and justified under the statutory framework.

The final orders of the court included granting an extension of time for filing the notice of appeal, dismissing the appeal, and ordering the appellant to pay the respondents' costs of the appeal.

Orders

Orders of the court

1. The time limited for filing the notice of appeal is extended to 21 May 2004.

2. The appeal be dismissed.

3. The appellant pay the respondents’ costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 1 June 2004, the appellant filed an application for an extension of time to file and serve a notice of appeal against the judgment of Weinberg J. The proposed notice of appeal had been filed on 21 May 2004. When the appeal came on for hearing, the extension of time was granted and argument proceeded on the merits of the appeal. Although, as appears below, his Honour dismissed the application on the basis that it was brought outside the time limited by the ADJR Act and although there might be some argument therefore that the orders made by his Honour were interlocutory, the parties were content to treat them as final. On the basis that the judgment below was final, which would seem to have been correct, no leave to appeal was required. Had it been required it would have been granted as the practical effect of the judgment below was finally to dispose of the appellant’s claim for relief.Reasons for Judgment of the Primary Judge In his reasons for judgment the learned primary judge set out the factual and procedural background leading up to the application under the ADJR Act. He identified the substantive decision as that made by the Minister on 21 March 2002 that the proposed action by the Victorian Government to construct, operate and maintain the northern section of the Scoresby Freeway was not a ‘controlled action’. His Honour also referred to the statement of reasons which were provided by the Minister on 29 May 2002 under s 13 of the ADJR Act and observed: ‘In schedule (sic) to the statement of reasons, the Minister referred specifically to the applicant’s submission. However, the Minister made no reference whatever in those reasons to the possibility of an Eastern Freeway-Greensborough link being built. Notwithstanding that fact, the applicant took no steps, at that stage, to challenge the substantive decision. His explanation for his inaction is contained in an affidavit sworn 30 June 2003, in which he said at par 6: “The respondent’s reasons made no reference to the submission I made about the Bulleen-Heidelberg Freeway. I believed at the time that this was because the respondent had no capacity under the EPBC Act to investigate the truth of my allegations about the issue.”’ His Honour then referred to the second decision notified to the appellant on 7 May 2003 in which the Minister concluded that the Court findings and the appellant’s submissions in relation to them did not provide a basis for reconsideration as they were not ‘substantial new information’. The learned primary judge referred to submissions made by the appellant identifying the critical issue in the case as the advice given by the Department to the Minister on 21 March 2002 that it was not open to the Minister to consider the secondary or indirect effects of a referred proposal when carrying out his duties under s 75. The appellant contended that the advice was incorrect and that the Minister was obliged to consider such effects subject to commonsense standards of remoteness and relevance.

Ratio Decidendi

Legal Principle Established

There is provision for reconsideration of decisions and this is set out in s 78 which provides, inter alia: ‘Reconsideration of decisionLimited power to vary or substitute decisions(1)The Minister may revoke a decision (the first decision) made under subsection 75(1) about an action and substitute a new decision under that subsection for the first decision, but only if: (a)the Minister is satisfied that the revocation and substitution is warranted by the availability of substantial new information about the impacts that the action: (i)has or will have; or (ii)is likely to have; on a matter protected by a provision of Part 3; or (aa)the Minister is satisfied that the revocation and substitution is warranted by a substantial change in circumstances that was not foreseen at the time of the first decision and relates to the impacts that the action: (i)has or will have; or(ii)is likely to have; on a matter protected by a provision of Part 3;....’ Statutory Framework – Administrative Decisions (Judicial Review) Act 1977 (Cth) Applications under the ADJR Act must be made in accordance with the requirements of s 11 of the Act which provides, inter alia: (1) An application to the Federal Court or the Federal Magistrates Court for an order of review – (a) shall be made in such manner as is prescribed by: (i)in the case of an application to the Federal Court – Federal Court Rules; or (ii)in the case of an application to the Federal Magistrates Court – Federal Magistrates Rules; and (b)shall set out the grounds of the application; and (c)shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows....(3) The prescribed period for the purposes of paragraph (1)(c) is the period commencing on the day on which the decision was made and ending on the twenty-eighth day after – (a)if the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision – the day on which a document setting out the terms of the decision is furnished to the applicant; or(b)in a case to which paragraph (a) does not apply –(i)if a statement in writing setting out those findings, referring to that evidence or other material and giving those reasons is furnished to the applicant otherwise than in pursuance of a request under sub-section 13(1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is furnished to the applicant – the day on which the statement is so furnished; (ii)if the applicant, in accordance with sub-section 13(1), requests the person who made the decision to furnish a statement as mentioned in that sub-section – the day on which the statement is furnished, the applicant is notified in accordance with sub-section 13(3) of the opinion that the applicant was not entitled to make the request, the Federal Court or the Federal Magistrates Court makes an order under sub-section 13(4A) declaring that the applicant was not entitled to make the request or the applicant is notified in accordance with sub-section 13A(3) or 14(3) that the statement will not be furnished; or (iii)in any other case – the day on which a document setting out the terms of the decision is furnished to the applicant.’