Mees v Kemp & Anor

[2005] HCATrans 623

[2005] HCATrans 623

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M19 of 2005

B e t w e e n -

PAUL ANDREW MEES

Applicant

and

DAVID KEMP (IN HIS CAPACITY AS MINISTER FOR THE ENVIRONMENT AND HERITAGE)

First Respondent

SOUTHERN AND EASTERN INTEGRATED TRANSPORT AUTHORITY

Second Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 29 AUGUST 2005, AT 9.33 AM

Copyright in the High Court of Australia

__________________

McHUGH J:   On 10 June 2003, the applicant filed an application in the Federal Court against the applicant for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) of two decisions of the first respondent that relate to the Victorian Government’s construction of a freeway, named “the Mitcham‑Frankston Project”. On 21 March 2002, the first respondent decided, under s 75 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“the EPBC Act”) that a proposal to construct, operate and maintain a northern section of the Mitcham-Frankston Project was not a “controlled action”, and so, did not require approval under Pt 9 of the EPBC Act. On 2 May 2003, the applicant wrote to the first respondent and submitted that the findings of Gray J in Mees v Roads Corporation (2003) 128 FCR 418 were “substantial new information”, under s 78 of the EPBC Act, concerning the impact of the proposed actions. On 7 May 2003, the first respondent wrote to the applicant and stated that “the Court findings, and your submissions in relation to the Court proceedings, do not provide a basis for reconsideration, as they are not substantial new information.” Decision, V456 of 2003, p13.

The Federal Court dismissed the applicant’s application for review because the first respondent’s statement of reasons for the decision of 21 March 2002 was not defective and because the first respondent’s decision not to reconsider his decision of 21 March 2002 was not a “decision” for the purposes of the ADJR Act.

The Full Court of the Federal Court dismissed an appeal from the Federal Court. The Full Court held that the first respondent’s statement of reasons for the decision of 21 March 2002 complied with the requirements of s 13 of the ADJR Act and that the judgment of Gray J did not constitute “substantial new information”.

The applicant’s special leave application complained that the Full Court of the Federal Court made errors of law in holding that the first respondent’s statement of reasons satisfied the requirements of s 13 of the ADJR Act, that the judgment of Gray J did not amount to “substantial new information” for the purposes of s 78 of the EPBC Act and that the Federal Court erred in holding that the second respondent’s consideration of the issues was not tainted by error of law.

Special leave is refused because an appeal would have insufficient prospects of success.  Moreover, it is doubtful whether the application raises a question of law of sufficient public importance to warrant a grant of leave.  Given the facts and issues involved, it is unlikely that any decision in an appeal would result in the formulation of general principles application to a wide variety of administrative law cases.

The application is dismissed.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application.  I publish our joint reasons.

AT 9.33 AM THE MATTER WAS CONCLUDED