Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulation
[2014] WASC 468
•11 DECEMBER 2014
MINERALOGY PTY LTD -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT REGULATION [2014] WASC 468
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 468 | |
| Case No: | CIV:1476/2014 | 14 NOVEMBER 2014 | |
| Coram: | EDELMAN J | 11/12/14 | |
| 48 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MINERALOGY PTY LTD CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT REGULATION CITIC PACIFIC MINING MANAGEMENT PTY LTD |
Catchwords: | Judicial review Whether Chief Executive Officer of Department had the power to amend Desalination licence Whether Chief Executive Officer could reasonably have formed the opinion that applicant had no direct interest in the subject matter of desalination licence or amended transhipment licence Whether decision would be invalid for failure to comply with s 57(2)(b)(i) of Environmental Protection Act 1986 (WA) Whether inconsistency between (i) Ministerial Statement and (ii) grant of, or amendment of, licences |
Legislation: | Civil Judgments Enforcement Act 2004 (WA) Environmental Protection Act 1986 (WA) Environmental Protection Regulations 1987 (WA) Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) |
Case References: | A v Corruption and Crime Commissioner [2013] WASCA 288 Davis v Bunn [1936] HCA 44; (1936) 56 CLR 246 Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353 FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Gavranich v Shire of Wanneroo (Unreported, WASC, Library No 980473, 25 August 1998) Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Lourey v Legal Profession Complaints Committee [2012] WASCA 112 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 New South Wales v Kable [2013] HCA 26; (2013) 87 ALJR 737 Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Connell and Another; Ex parte The Hetton Bellbird Collieries Limited [1944] HCA 42; (1944) 69 CLR 407 Re McBain; Ex Parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 Rola Company (Australia) Pty Ltd v The Commonwealth [1944] HCA 17; (1944) 69 CLR 185 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 Savage v Tech Explorations Ltd (Unreported, WASC, Library No 7285, 16 September 1988) Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 2) [2014] WASC 444 State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291 State of Western Australia v Brown [2014] HCA 8; (2014) 88 ALJR 461 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF ENVIRONMENT REGULATION
First Respondent
CITIC PACIFIC MINING MANAGEMENT PTY LTD
Second Respondent
Catchwords:
Judicial review - Whether Chief Executive Officer of Department had the power to amend Desalination licence - Whether Chief Executive Officer could reasonably have formed the opinion that applicant had no direct interest in the subject matter of desalination licence or amended transhipment licence - Whether decision would be invalid for failure to comply with s 57(2)(b)(i) of Environmental Protection Act 1986 (WA) - Whether inconsistency between (i) Ministerial Statement and (ii) grant of, or amendment of, licences
Legislation:
Civil Judgments Enforcement Act 2004 (WA)
Environmental Protection Act 1986 (WA)
Environmental Protection Regulations 1987 (WA)
Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr K Barlow QC & Ms R J Lee
First Respondent : Mr C Bydder & Ms M Georgiou
Second Respondent : Mr S K Dharmananda SC & Mr S C Wong
Solicitors:
Applicant : Michael John Dunham
First Respondent : State Solicitor for Western Australia
Second Respondent : Allens
Cases referred to in judgment:
A v Corruption and Crime Commissioner [2013] WASCA 288
Davis v Bunn [1936] HCA 44; (1936) 56 CLR 246
Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353
FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Gavranich v Shire of Wanneroo (Unreported, WASC, Library No 980473, 25 August 1998)
Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
New South Wales v Kable [2013] HCA 26; (2013) 87 ALJR 737
Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52
Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Connell and Another; Ex parte The Hetton Bellbird Collieries Limited [1944] HCA 42; (1944) 69 CLR 407
Re McBain; Ex Parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372
Rola Company (Australia) Pty Ltd v The Commonwealth [1944] HCA 17; (1944) 69 CLR 185
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294
Savage v Tech Explorations Ltd (Unreported, WASC, Library No 7285, 16 September 1988)
Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 2) [2014] WASC 444
State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291
State of Western Australia v Brown [2014] HCA 8; (2014) 88 ALJR 461
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346
Texts cited:
Harding M and Malkin I 'The High Court of Australia's Obiter Dicta and Decision-Making in the Lower Courts' (2012) 34(2) Sydney Law Review 239
Hohfeld W 'Fundamental legal conceptions as applied in judicial reasoning' (1917) 26 Yale Law Journal 710
EDELMAN J:
Introduction
1 Citic Pacific Mining Management Pty Ltd (CPMM) operates the Sino Iron Project at Cape Preston in the Pilbara region. The Sino Iron Project is a magnetite mining and export operation. CPMM manages the project on behalf of Sino Iron Pty Ltd and Korean Steel Pty Ltd.
2 In 2012 and 2013, the Chief Executive Officer of the Department of Environment Regulation granted two emissions licences to CPMM. These were a Transhipment Licence (subsequently amended) and a Desalination Licence. Both the Amended Transhipment Licence and the Desalination Licence expire on 25 November 2015.
3 Mineralogy seeks prerogative relief to quash a decision of the Chief Executive Officer to amend the Transhipment Licence1 and the Desalination Licence. Mineralogy also seeks unspecified declarations. Mineralogy says that its comments on these decisions should have been sought. It relies on s 57(2)(b)(i) of the Environmental Protection Act 1986 (WA) and, in relation to the Amended Transhipment Licence, the general law principles of natural justice.
4 Mineralogy's submissions must be rejected. There was no infringement by the Chief Executive Officer of s 57(2)(b)(i) of the Environmental Protection Act. That subsection required him to seek comment from any person who, in his opinion, has a direct interest in the subject matter of the application. And even if there were an infringement of this provision, it would not have rendered the decision of the Chief Executive Officer invalid.
5 At the hearing of this application Mineralogy sought, and obtained, leave to add another two grounds.
6 The first additional ground alleged that the Chief Executive Officer did not have the jurisdiction and was not authorised to redraw or expand the boundaries of the Transhipment Licence. As senior counsel for Mineralogy frankly conceded, this submission is inconsistent with the decision of the Court of Appeal in this jurisdiction in Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation.2 Senior counsel for Mineralogy submitted that the remarks by McLure P and Newnes JA in the Court of Appeal on this point were not binding upon me because they were obiter dicta, without the benefit of detailed argument,3 and 'apparently without a detailed consideration of the language used'.4 I reject this ground. With respect, the decision of the Court of Appeal on this point is plainly correct.
7 The second additional ground concerned the alleged lack of power for the Chief Executive Officer to grant or amend Transhipment or Desalination licences under the Environmental Protection Act, in a manner which is contrary to Ministerial Statements. This ground must also be rejected. No inconsistency exists.
8 Because I have concluded that each of Mineralogy's grounds for judicial review is unsustainable, it is not necessary to consider whether discretion should be exercised to refuse relief. Nevertheless it is noteworthy that there was evidence of considerable prejudice to CPMM that would arise if the amendments to the Transhipment Licence or the Desalination Licence were quashed. In contrast, there was no evidence of any current prejudice to Mineralogy and, at best, only a speculative possibility of future prejudice.
9 Perhaps the main example of potential future prejudice to Mineralogy that was asserted by senior counsel for Mineralogy, was an alleged overlap between
(i) a mooring point (designated by the harbour master, not by the Chief Executive Officer) within the area of the Amended Transhipment Licence; and
(ii) 'an area in which further work will be carried out in order to construct a deep water jetty which will be accessed via the shipping channel'.5
10 But there was no evidence of any intention by Mineralogy to carry out that 'further work' before the Amended Transhipment Licence expires on 25 November 2015. There was not any evidence even of preparatory work by Mineralogy in the period between the grant of the General Purpose Leases in 2003 and 2004 and the end of January 2014, when Mineralogy discovered the amendment that had been made to the Transhipment Licence.
Background and the applications for licences and amendments
11 The background, including the applications for licences and the application for amendments to the Transhipment Licence, is described in the affidavit of Mr Watson.6 Mr Watson is a Manager - Sustainability & Environment for CPMM. He has been employed by CPMM since mid-2010. He manages a team of about 12 people all of whom are environmental professionals and consultants. He explains the following.
12 CPMM is a subsidiary of Citic Pacific Limited. Other subsidiaries of Citic Pacific Limited are Sino Iron and Korean Steel.
13 Sino Iron and Korean Steel are co-proponents of the State Agreement in relation to the Sino Iron Project.7 CPMM has been engaged by Sino Iron and Korean Steel to manage the Sino Iron Project. CPMM undertakes the day-to-day operations for Sino Iron and Korean Steel.
14 The Sino Iron Project is a fully integrated magnetite mining and export operation. As Mr Watson explains, it involves the following production sequences:
(i) an open pit mining operation;
(ii) in-pit crushers;
(iii) a conveyor to take coarse material to the coarse ore stockpile and on to the mills;
(iv) an autogenous grinding mill;
(v) a ball mill;
(vi) a magnetic separation processing facility (also known as a concentrator) where the magnetite is concentrated through wet magnetic separation to approximately 67% magnetite content and tailings are produced;
(vii) each of the concentrate and tailings are separately processed through thickeners and:
(a) the concentrate is pumped through a slurry pipeline to the port; and
(b) the tailings are pumped to a tailings storage facility;
(viii) the concentrate is:
(a) dewatered to contain approximately 7% moisture; and
(b) stockpiled, at the port;
(ix) the concentrate is then reclaimed (ie that is loaded onto a further conveyor) and conveyed to the barge loading facility on the breakwater;
(x) the concentrate is loaded onto barges which are towed by tugs to anchorage points where the magnetite concentrate is loaded onto ocean going vessels.
15 There are two aspects of this process that are directly relevant to this application. The first is the desalination of water. The second is the loading of ocean going vessels. The first requires a Desalination Licence. The second can require a Transhipment Licence.
The Desalination Licence
16 The first aspect of the Sino Iron Project processes which is directly relevant to these proceedings is the use of a desalination plant as part of the operations. The desalination plant converts sea water into fresh water that can be used in the production process. The fresh water is used for the steam turbines in the power plant, the concentrator, and in some dust controls, where saline water cannot be used.
17 The desalination process produces waste water which is discharged into the ocean at waste water outfall points.
18 Part V of the Environmental Protection Act requires a licence for the operation of the desalination plant under category 54A of sch 1 to the Environmental ProtectionRegulations 1987 (WA).
19 The desalination plant involves two trains. Initially, only the east train was required due to the predicted output of the processing plant. In May 2013, CPMM applied to the Department of Environment and Conservation (the Department) (as it was known until July 2013) for a pt V licence to operate the east train of the desalination plant.
20 On 1 July 2013, CPMM's application for the licence was advertised by the Department in the West Australian newspaper.
21 On 22 November 2013, the Department granted the Desalination Licence for a period expiring on 25 November 2015. The grant of the Desalination Licence was advertised by the Department in the West Australian newspaper on 25 November 2013.
22 On 9 October 2013, CPMM applied for the amendment of the Desalination Licence to incorporate a Bulk Loading Facility. The Desalination Licence has not yet been amended by the Department.
Transhipment Licence and amendments
23 The second aspect of the production process that is directly relevant to this application is the loading of the ocean going vessels. CPMM's intention is that as the Sino Iron Project increases in capacity, this loading will take place through the use of transhippers. The transhippers will load large vessels.
24 Under the Environmental Protection Regulations sch 1, two categories of 'prescribed premises' for which a licence is required are 'Bulk material loading or unloading' (category number 58) and 'Bulk storage of chemicals' (category number 73). In June 2012, CPMM applied to the Department for a licence to operate two transhipment facilities. The transhipment facilities would, at full production, undertake bulk loading of magnetite concentrate or pellets onto ocean going vessels. The large vessels which carry considerable quantities of product are loaded by transhipment because their size means that they are unable to moor close enough to shore to allow direct loading. The Cape Preston Port facility was specifically designed to use a transhipment method of loading.
25 CPMM's application for the grant of the Transhipment Licence was advertised by the Department in the West Australian newspaper on 23 July 2012.
26 The Transhipment Licence was granted by the Department on 22 November 2012. The licence concerned the proposed loading of large vessels by the use of two transhipper vessels 'MAG Dragon 1' and 'MAG Dragon II'. The Licence included coordinates of the Transhipment Anchorage area. The Licence allowed vessels to anchor approximately 22 km offshore.
27 In December 2012, production had not yet reached the capacity needed to make regular use of the transhipment facility economically viable. So CPMM applied to the Department to amend the Transhipment Licence to include the use of geared vessels. The geared vessels that CPMM proposed using were vessels which had their own 'grabs', to load product directly onto ocean going vessels without the use of the transhipper vessels.
28 On 7 February 2013, the Transhipment Licence was amended in a manner not material to this litigation.
29 On 11 June 2013, CPMM applied to amend further the Transhipment Licence to allow four inner anchorage locations for geared vessel bulk loading operations. Mr Watson said that the CPMM environment team considered that the inner anchorages would allow the smaller geared vessels to moor closer to shore (6.5 km as opposed to 22 km for the outer anchorages).
30 A revised Environmental Assessment Report by the Department said that the operational benefits of allowing CPM (an Australian company owned by Citic Pacific Ltd) to access inner anchorages that are closer to Cape Preston were as follows:
• reduced fuel consumption and exhaust emissions as a result of the reduced distance for tug boats to travel;
• reduced transit times for the tug boats and ore laden barges;
• reduced time the geared vessel will remain in port, as a geared vessel located at the inner anchorages can be fully loaded in 4.5 days, as opposed to 6 days at the outer anchorages;
• better operating conditions as the waters are more protected at the inner anchorage points, so there is less exposure to wind, wave heights, swells and currents. This will reduce the risk of spills during loading operations and reduce the number of days that the loading operations are required to cease due to unsafe operating conditions; and
• quicker response time in the event of an incident as the inner anchorage points are closer to Cape Preston.
31 The revised Environmental Assessment Report also observed that CPM had said that the inner anchorage locations should not result in significant changes to the emissions or discharges from the site. Emissions and discharges will continue to be managed through the existing pollution control equipment, operational controls and licence conditions.
32 On 27 June 2013, the Department wrote to CPMM saying that it intended to amend the Transhipment Licence. The Department invited CPMM to show cause within 21 days why the proposed amendments should not be made.
33 On 3 July 2013, CPMM wrote to the Department authorising the waiver of the 21 day consultation period and asking for the amended licence to be finalised and issued as soon as possible.
34 On 11 July 2013, the Department issued the amendment to the Transhipment Licence. In these reasons I will refer to the Transhipment Licence, as amended on 11 July 2013, as the Amended Transhipment Licence. The Amended Transhipment Licence expires on 25 November 2015.
35 On 25 November 2013, the Harbour Master exercised his power under s 5(1)(b) of the Shipping and Pilotage Act 1967 (WA) to designate the four inner anchorages, and the associated buoys, lights and beacons.
36 The first shipment of magnetite concentrate from the Sino Iron project was shipped to China in December 2013.
The provisions of the Environmental Protection Act
37 The parties all generally adopted the written submissions of the Chief Executive Officer of the Department concerning the operation of the relevant provisions of the Environmental Protection Act.8 That operation is as follows.
38 Part IV of the Environmental Protection Act (ss 37B to 48J) is concerned with environmental impact assessment.
39 By s 38, a significant proposal is referred to the Environmental Protection Authority (the EPA), which determines whether or not to assess a significant proposal that is referred to it.
40 When a proposal is referred to the EPA, s 38(6) of the Environmental Protection Act provides for the Minister for Environment to nominate a person as being responsible for the proposal. The person so nominated is to be regarded, for the purposes of the definition of 'proponent' in s 3(1), to be the person responsible for the proposal.
41 A person notified under s 39A(3)(a) of the Environmental Protection Act that the EPA is going to assess a proposal is to be regarded as having been nominated under s 38(6) whether or not such a nomination has been made.
42 By s 38(6a), a nominated proponent for a proposal must notify the EPA of any person to whom responsibility for the proposal will pass or has passed.
43 By s 38(7), the Minister is given a power to revoke the nomination of a person as a proponent and to nominate another person as proponent in respect of the proposal.
44 While the proposal is under assessment:
(i) decision-making authorities may not make any decision that could have the effect of causing or allowing the proposal to be implemented; and
(ii) a person who does anything to implement a proposal before a Ministerial Statement has been published commits an offence.
45 By s 44, once the EPA has completed its assessment it must prepare a report on the outcome of the assessment and provide that report to the Minister.
46 Following any appeals under Pt VII of the Environmental Protection Act, the Minister and relevant decision making authorities may reach agreement under s 45(1) as to whether or not the proposal may be implemented and, if so, the conditions and procedures to which that implementation should be subject.
47 By s 45(5), an implementation agreement which provides that the proposal may be implemented, or may be implemented subject to conditions, is set out in a Ministerial Statement.
48 It was common ground from the submissions of the Chief Executive Officer that a Ministerial Statement has four consequences for the proponent of a Ministerial Statement. On this application it was also assumed by all parties that these four consequences would extend to all persons concerned with the implementation of a referred proposal. Apart from a power to obtain approvals from other decision making authorities, and apart from the duty to ensure compliance with conditions of the Ministerial Statement, each consequence involves a freedom from various liability, or the conditions of such a freedom, for those persons concerned with implementing the proposal.
(i) Those persons will no longer commit an offence against s 41A of the Environmental Protection Act if they do anything to implement the proposal.
(ii) Those persons can obtain approvals required for the lawful implementation of the proposal from other decision making authorities. This is because s 41 of the Environmental Protection Act ceases to apply.
(iii) Persons implementing the proposal in accordance with the implementation agreement reflected in the Ministerial Statement have a defence to various criminal proceedings. They also do not require a clearing permit to avoid committing an offence against s 51C of the Environmental Protection Act.
(iv) The proponent will commit an offence against s 47(1) of the Environmental Protection Act if it does not ensure that implementation of the proposal is carried out in accordance with implementation conditions in the Ministerial Statement.
49 Part V of the Environmental Protection Act regulates and prohibits pollution, emissions, and clearing of native vegetation. Division 3 of pt V requires occupiers of prescribed premises, who cause emissions, to obtain works approvals and licences to avoid committing offences.
50 Section 56(1) of the Environmental Protection Act creates an offence which may be committed where the occupier of any prescribed premises does any of the following from the prescribed premises:
(i) causes or increases, or permits to be caused or increased, an emission; or
(ii) alters or permits to be altered the nature of the waste, noise, odour or electromagnetic radiation emitted.
51 'Prescribed premises' are defined in s 3 of the Environmental Protection Act as 'premises prescribed for the purposes of pt V'. The Prescribed premises are listed in Schedule 1 to the Environmental Protection Regulations.
52 'Occupier' is defined in s 3, in relation to -
(i) any premises, to mean a person who is in occupation or control of those premises, whether or not that person is the owner of those premises; or
(ii) premises different parts of which are occupied by different persons, to mean, in relation to any such part, a person who is in occupation or control of that part, whether or not that person is the owner of that part.
53 An occupier does not commit an offence against s 56(1) if he or she holds a licence and acts in accordance with any conditions to which that licence is subject. Section 74A(b)(iv) also establishes a defence to various charges under pt V of the Environmental Protection Act if the person charged with the offence proves that the act occurred in accordance with a licence granted under s 57.
54 Section 57 provides for applying for, granting, and refusing a licence. Subsection 57(4) provides that if an application for a licence is related to a pt IV proposal, the Chief Executive Officer shall not determine whether to grant or refuse the licence under subsection (3) -
(i) while any decision-making authority is precluded by s 41 from making any decision which could have the effect of causing or allowing that proposal to be implemented; or
(ii) contrary to, or otherwise than in accordance with, an implementation agreement or decision.
55 On receiving the application, the Chief Executive Officer (or his or her delegate) may decline to deal with the application under s 57(2)(a) or proceed to consider the application under s 57(2)(b).
56 Section 57(2)(b)(i) of the Environmental Protection Act provides that, after the Chief Executive Officer receives a complying application, he or she shall seek comments from 'any public authority or person which or who in the opinion of the Chief Executive Officer has a direct interest in the subject matter of that application'.
57 In addition to seeking those comments, the Chief Executive Officer is to advertise the application in the prescribed manner, inviting any person who wishes to comment on it to do so within such period as is specified in the advertisement.
58 Section 57(3) provides that the 'CEO shall, after having taken into account any comments received from any public authority or person from which or whom the comments are sought under subsection (2)(b) or (2a)' grant the licence with conditions or refuse to grant the licence.
59 Section 57(3) also provides that the Chief Executive Officer shall grant an application subject to conditions under s 62 which the Chief Executive Officer 'considers to be necessary or convenient for the purposes of this Act relating to the prevention, control, abatement or mitigation of pollution or environmental harm'. Section 62A sets out some particular kinds of conditions which may be prescribed.
60 It was common ground from the submissions of the Chief Executive Officer, that the grant of a licence has three legal consequences. Apart from duties to ensure that conditions of a licence are complied with, each of these legal consequences concerns freedom from liability for the commission of various offences.
(i) The licence holder will not commit an offence against s 56 of the Environmental Protection Act so long as they act in accordance with the licence.
(ii) The licence holder and persons carrying out the licensed activity may have a defence under s 74A(b)(iv) to a variety of proceedings for offences.
(iii) A licence holder who contravenes a condition to which the licence is subject commits an offence against s 58(1).
61 By s 57(4), the Chief Executive Officer must not grant a licence which is contrary to, or otherwise than in accordance with, a Ministerial Statement.
The Chief Executive Officer's decisions and the evidence before him
62 The premises which are 'prescribed' for the purposes of the Environmental Protection Act are listed in sch 1 to the Environmental Protection Regulations.
63 In broad terms, the emission of waste from the desalination plant gives rise to a premises becoming prescribed premises. And the transhipment of products is prescribed premises because it may pollute the marine environment.9
64 More particularly, under the Environmental Protection Regulations, sch 1, pt 1, the Transhipment Licence is prescribed premises category numbers 58 and 73. The Desalination Licence is prescribed premises category number 54A. These categories are as follows:
| 58 |
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| 58A |
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| 73 |
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(i) The requested amendment of the Transhipment Licence (which licence was granted on 22 November 2012) was made on 11 July 2013; and
(ii) The grant of the Desalination Licence was made on 22 November 2013.
66 Evidence was given from Ms Laszig, the Acting Director Licensing and Approvals at the Department of Environment Regulation.10 Ms Laszig explained the Department's records system, including the manner of electronic record keeping for applications for a licence and supporting documentation.
67 As to the Transhipment Licence, Ms Laszig annexed the material contained in the hard copy and electronic file for the grant of that licence on 22 November 2012. This material was the application for that licence on 1 June 2012. Mr Watson also annexed to his affidavit the 11 June 2013 application by CPMM for the amendment to the Transhipment Licence.11
68 As to the Desalination Licence, Ms Laszig annexed the material contained in the hard copy and electronic file for the grant of that licence. This material was the 8 May 2013 application for the licence.
The grounds for judicial review and declarations
69 This judicial review application was not brought until April 2014. The circumstances of the delay,12 and the timing of Mineralogy's awareness of the amendment and grant, were explained in the evidence of Mr Robinson.13 There was no issue concerning the timing of the application.
70 The application for judicial review was set out in the nature of submissions. Some of the grounds of judicial review (particularly, (4) below) emerged from submissions rather than the application. Nevertheless, the following grounds of review were raised, and argued without objection. Although the application consisted of numbered paragraphs, I have numbered below what were effectively the grounds of the application in the order in which I consider them in these reasons.
(1) The Chief Executive Officer had no power to redraw or expand the boundaries of the Transhipment Licence.14
(2) The Amended Transhipment Licence and Desalination Licence are invalid because the Chief Executive Officer, acting reasonably, must necessarily have reached the conclusion that Mineralogy had a direct interest in the subject matter of the application and was therefore required to provide Mineralogy with the opportunity to comment on the amendment and on the grant.15
(3) The Amended Transhipment Licence is invalid because the Minister failed to afford natural justice to Mineralogy in the process of deciding to grant the amendment to that licence.16
(4) The Amended Transhipment Licence and Desalination Licence are invalid because they are inconsistent with Ministerial Statements 635 and 822.
Ground 1: Power to redraw or expand boundaries of the Transhipment Licence
71 It is convenient to deal first with Mineralogy's ground of review that concerns the power of the Chief Executive Officer under the Environmental Protection Act to review and expand the boundaries of the Transhipment Licence. Mineralogy's submissions in relation to this ground were repeated in relation to other grounds.
72 Mineralogy's submission was that the Chief Executive Officer did not have the power under s 59(1)(c) of the Environmental Protection Act to redraw the boundaries of the Transhipment Licence.
73 Section 59 of the Environmental Protection Act provides as follows:
(1) The CEO may amend a works approval or licence by -
(a) removing or varying any condition to which the works approval or licence is subject; or
(b) subjecting the works approval or licence to a new condition; or
(c) redescribing the boundaries or area of the premises to which the works approval or licence applies; or
(d) redescribing the purpose for which the premises to which the works approval or licence applies are used; or
(e) correcting in the works approval or licence -
(i) a clerical mistake or unintentional error or omission; or
(ii) a figure which has been miscalculated; or
(iii) the misdescription of any person, thing or property;
or
(f) making an administrative change to the format of the works approval or licence which does not alter the obligations of the occupier of the premises to which the works approval or licence relates; or
(g) adding a discharge point or emission point; or
(h) deleting any discharge point or emission point which is no longer in use; or
(i) amending the works approval or licence in conformity with an approved policy or prescribed standard or with an exemption conferred under this Act; or
(j) amending the works approval or licence to give effect to a decision of the Minister under this Act (whether on an appeal or otherwise); or
(k) extending the duration of the works approval or licence.
(2) A works approval or licence may be amended on application by the holder of the works approval or licence or on the initiative of the CEO.
74 The essence of Mineralogy's submission was that to 'redescribe' the boundaries or area does not mean to redraw or redefine them in order to 'increase the boundaries by a large amount'.17 Senior counsel for Mineralogy said that s 59(1)(c) was confined to a power to clarify content that was already present in the licence.18 He said that it is concerned to redescribe, with more clarity, boundaries that are described in a way that is not overly clear.19
The decision in Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation
75 The scope of s 59(1)(c) was considered by the Court of Appeal in Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation.20 In that case, Eclipse Resources was granted licences under s 57 of the Environmental Protection Act for two resource recovery centres, one described as the Abercrombie Site and the other described as the Wanneroo Site. Subsequent to the grant, a waste levy was imposed on holders of these licences. In order to reduce the levy, Eclipse Resources applied to have the area of land reduced in each licence in relation to particular permitted activity. The Abercrombie licence (with any amendment) was about to expire. So, before the Abercrombie Site licence amendment had been determined by the Chief Executive Officer, Eclipse Resources applied for a new licence. The new licence was applied for in the same terms as the existing licence but over the reduced area. The new licence was granted but without the reduced area.
76 McLure P described the 'central issue' in the appeal as whether the Chief Executive Officer had the power to grant a licence over a larger area than the subject of the new licence application by Eclipse Resources for activities on the Abercrombie Site.21 The consideration of the power to grant a licence required also consideration of the power to amend a licence. As McLure P said at the commencement of her reasons, the appeal 'raises issues concerning the nature and scope of the power to grant and amend a licence under ss 57 and 59B, respectively, of the Environmental Protection Act 1986 (WA)'.22
77 Her Honour held that the Chief Executive did have that power. Murphy JA generally agreed with the reasons of McLure P.23
78 As part of her Honour's reasoning concerning the power of the Chief Executive Officer to issue a licence over an area broader than the area contained in the application, McLure P relied (in her words) 'most significantly' upon s 59. After earlier describing the power conferred by s 59 as 'very wide',24 her Honour said this:25
Fourthly, and most significantly, is the respondent’s power in s 59 of the Act, on his initiative, to redescribe the boundaries or area of the premises to which the licence applies. That permits a substantive variation to the area of the licensed premises. It is inconceivable that the respondent would be given the power to vary the boundaries or area of licensed premises but not have any flexibility in the identification of the boundaries or area of the premises at the time of the grant of the licence. As the appellant acknowledged, if the respondent does not have the power to grant a new licence over a bigger area than that applied for, s 59(1)(c) would have to be read down to correspondingly confine the power to amend. The availability of a right of appeal from an amendment to, but not the grant of, a licence does not alter that assessment. There would need to be a compelling justification to deprive the respondent of the flexibility associated with the natural and ordinary meaning of the amendment power.
79 Although Newnes JA dissented in relation to the construction of s 57 and whether the Chief Executive Officer had power to grant a licence over an area greater than that sought, his Honour did not doubt the 'wide powers' that the Chief Executive Officer has under s 59(1)(c) to alter, on his own initiative, the area of the premises to which the licence relates.26
80 Mineralogy submitted that the decision of McLure P, with which Murphy JA generally agreed, was not binding upon me on this point. Mineralogy submitted that the remarks were obiter dicta, made without the benefit of detailed argument,27 and made 'apparently without a detailed consideration of the language used'.28 All of these comments were mere assertions. I have, however, read the transcript of the Court of Appeal proceedings on 22 March 2013, and it does appear that Mineralogy is correct that there was no substantial argument concerning whether the Chief Executive Officer had power to alter the area of the premises under s 59(1)(c). But there was a live issue in the appeal concerning whether s 59(1)(c) permits an increase in the area the subject of a licence, beyond the size of the area that was originally the subject of public consultation.29 That issue required the Court of Appeal to consider the nature and scope of s 59(1)(c).
81 I did not receive any substantial submissions from senior counsel for Mineralogy concerning whether the comments quoted above from McLure P were an indispensable part of her reasoning. Nor did I receive any substantial submissions concerning whether, if they were not, the comments were seriously considered obiter dicta. Nor did I receive any substantial submissions concerning whether I am bound by seriously considered obiter dicta of an intermediate appellate court in the same manner that, on one view,30 an intermediate appellate court may be bound by seriously considered obiter dicta of the High Court of Australia, whether or not also restricted by a requirement that the obiter dicta is part of a long-established line of authority.31
82 It is unnecessary to consider any of these issues. This is because, for the reasons below, and with respect, I consider that the premise of the Court of Appeal (that s 59(1)(c) permits amendment of a licence area) is plainly correct.
The language, context and purpose of s 59
83 All of the text, context, and purpose of s 59(1)(c) militate against Mineralogy's submission.
84 First, the plain meaning of the word 'redescribing' includes redefining and redrawing. The Macquarie Dictionary does not contain a definition of 'redescribe' or 'redescribing'. The Oxford English Dictionary defines redescribing as to 'describe again or differently'. The first example given is from the renowned botanist, Adam Afzelius, who wrote of a person whose 'memory appears to have failed him so much, that he redescribed it as a new species'. This plain meaning is not constrained in the way submitted by Mineralogy.
85 Secondly, s 59(1)(c) must be read by including the opening words of s 59. When the opening words are included, s 59(1)(c) reads '[t]he CEO may amend a works approval or licence by redescribing the boundaries or area of the premises to which the works approval or licence applies' (emphasis added). The reference to 'redescribing' is intended to be a manner of amendment of the licence rather than a mere correction of form.
86 Thirdly, the context of an amendment by redescription in s 59 includes the recognition in the same section of amendment by removing a condition, varying a condition, subjecting the area to a new condition, correcting matters, adding or deleting discharge or emissions points. The other verbs which describe processes of amendment reveal a broad statutory scope for a power to amend.
87 Fourthly,if 'redescribing' were confined to clarifying boundaries which had previously been described in a manner that was not 'overly clear' then it is hard to see how s 59(1)(c) would have any work to do. The lack of clarity would almost inevitably be the result of an unintentional omission or a misdescription of the property in some respect which should have been described more clearly. These circumstances of clarification would probably be wholly encompassed by s 59(1)(e) which permits amendment by 'a clerical mistake or unintentional error or omission' (s 59(1)(e)(i)) or 'the misdescription of any person, thing or property' (s 59(1)(e)(iii)) or 'making an administrative change to the format of the works approval or licence which does not alter the obligations of the occupier of the premises to which the works approval or licence relates' (s 59(1)(f)).
88 Fifthly, there is an incongruity in Mineralogy's submission arising from the provision immediately following s 59(1)(c). That is the power in s 59(1)(d) to redescribe 'the purpose for which the premises to which the works approval or licence applies are used'. If, for example, the licence were amended in conformity with an approved policy or prescribed standard (s 59(1)(i)) or to give effect to a decision of the Minister under the Act (s 59(1)(j)) then there may be a need to make substantive changes to the description of an existing purpose. Redescribing the purpose could not be confined to merely clarifying an existing purpose. Since 'redescribe' in s 59(1)(d) does not merely clarify an existing purpose, it is hard to see why it should be so confined in s 59(1)(c).
89 For these five reasons Mineralogy's submissions concerning s 59(1)(c) must be rejected, and this ground of review must be dismissed.
Ground 2: Compliance with s 57(2)(b)(i) of the Environmental Protection Act
The test for compliance with s 57(2)(b)(i)
90 Mineralogy submitted that both the Amended Transhipment Licence and the Desalination Licence were invalid because they failed to comply with the requirements for a grant of a licence under s 57(2)(b)(i) of the Environmental Protection Act.
91 Section 57 provides as follows.
(1) An application for a licence shall be -
(a) made in the form and in the manner approved by the CEO; and
(b) accompanied by such fee as is prescribed by or determined under the regulations; and
(c) supported by such plans, specifications and other documents and information, including a summary thereof, as the CEO requires.
(2) On receiving an application made under subsection (1), the CEO shall -
(a) if that application -
(i) does not comply with that subsection; or
(ii) relates to a matter in respect of which a works approval -
(A) has been granted and, in the opinion of the CEO, the works concerned have not been completed satisfactorily in accordance with the conditions to which the works approval is subject (to the extent to which that completion and those conditions are relevant to that application); or
(B) is required to be, and has not been, granted and the works concerned have not been completed,
(b) if that application complies with that subsection and does not relate to a matter referred to in paragraph (a)(ii), advise the applicant that that application has been received and seek comments thereon from -
(i) any public authority or person which or who in the opinion of the CEO has a direct interest in the subject matter of that application; and
(ii) in the case of an application for a licence for the discharge of waste into a designated area, a person nominated by the Minister (Water Resources).
(3) The CEO shall, after having taken into account any comments received from any public authority or person from which or whom comments were sought under subsection (2)(b) or (2a) and subject to section 60 -
(a) in the case of an application for a licence made under subsection (1) relating to a matter in respect of which a works approval has not been granted and subject to subsection (4) -
(i) grant a licence subject to such of the conditions referred to in section 62 as the CEO specifies in the licence; or
(ii) refuse to grant the licence;
or
(b) in the case of an application for a licence made under subsection (1) relating to a matter in respect of which a works approval has been granted -
(i) if, in the opinion of the CEO, the works concerned have been completed in accordance with the conditions to which the works approval is subject, grant the licence subject to such of the conditions referred to in section 62 as are not inconsistent with any conditions to which the works approval is for the time being subject and as are specified by the CEO in the licence; or
(ii) refuse to grant the licence.
(4) If an application for a licence made under subsection (1) is related to a proposal which has been referred to the Authority under section 38, the CEO shall not perform the duty imposed on him by subsection (3) -
(a) while any decision-making authority is precluded by section 41 from making any decision which could have the effect of causing or allowing that proposal to be implemented; or
(b) contrary to, or otherwise than in accordance with, an implementation agreement or decision.
(4AA) Subsection (4) does not apply if the application is for a licence for the purpose of doing minor or preliminary work to which the Authority has consented under section 41A(3).
(4a) If a decision-making authority makes a decision that has the effect of preventing the implementation of a proposal to which an application for a licence made under subsection (1) is related, the CEO does not have to perform any duty imposed under subsection (3) while that decision has effect.
92 It was common ground that comments were not sought by the Chief Executive Officer from Mineralogy under s 57(2)(b)(i) in relation to the Amended Transhipment Licence or the Desalination Licence.
93 The relevant jurisdictional fact in s 57(2)(b)(i) is concerned with the opinion of the Chief Executive Officer.32 It was common ground that the issue in relation to any failure to comply with s 57(2)(b)(i) is whether the Chief Executive Officer, correctly understanding the meaning of the law, could not reasonably have failed to form the opinion that Mineralogy had a direct interest.33 It was also common ground that this question is to be answered by reference to the material before the Chief Executive Officer.34 Each of these points is correct.35
94 Although, in these reasons, I refer to whether the Chief Executive Officer 'could not reasonably have failed to form the opinion', I use the word 'reasonable' in the legal sense in which it is used in administrative law. I discussed the concept of reasonableness in The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority.36 It suffices to repeat that disagreement, even emphatic disagreement, with a conclusion (or opinion) does not mean that it is unreasonable. As Evatt J remarked in a different context, it is an error to reason in a manner as follows: '[t]he judge ... does not consider the defendant's conduct unreasonable in the circumstances, therefore no other person should consider it unreasonable, therefore any person who thinks it unreasonable is an unreasonable person'.37
95 For reasons I explain below, Mineralogy's submission in relation to both the Amended Transhipment Licence must fail because the amendments were made under s 59 of the Environmental Protection Act, not under s 57.
96 In any event, Mineralogy's submissions in relation to both the Amended Transhipment Licence and the Desalination Licence should be rejected because on the material before the Chief Executive Officer there was, at least, a reasonable basis upon which the Chief Executive Officer could have formed the opinion that neither Mineralogy's legal nor its practical interests would not be directly affected by the Amended Transhipment Licence, or the grant of the Desalination Licence. Put in the double negative terms of the legal question, I do not accept the submission that no reasonable Chief Executive Officer could have failed to form the opinion that Mineralogy had no direct interest.
The Transhipment Licence was not amended under s 57
97 There is a simple reason why Mineralogy's submission in relation to the Amended Transhipment Licence fails. Mineralogy did not challenge the grant of the Transhipment Licence. It only challenged the Chief Executive Officer's decision in relation to the amendments to the Transhipment Licence. The amendments were made under s 59. They were not made under s 57. I have already explained above in relation to ground 1 that there was power to amend the Transhipment Licence under s 59. For the same reasons, Mineralogy's submission that the amendments to the area of the licence were substantial and should be treated as the grant of a new licence under s 57 rather than an amendment under s 59 should be rejected.
98 Senior counsel for Mineralogy properly conceded that the rejection of ground 1 above would also require the rejection of this ground in relation to the Amended Transhipment Licence.38 In any event, however, I address this ground in relation to the Amended Transhipment Licence in light of the detailed submissions from all counsel.
The grant of the Amended Transhipment Licence and the Desalination Licence did not infringe s 57(2)(b)(i)
Lack of direct effect on legal interests
99 Senior counsel for Mineralogy was unable to point to any legal rights of Mineralogy's that could be affected by the grant of the Amended Transhipment Licence. This is unsurprising. There are none that could be affected.
100 In Hohfeldian terms, the grant of a licence under s 57 confers a freedom or 'privilege' from liability for an offence. Here it is a freedom subject to the conditions of the licence.39 Section 56 creates offences including an offence if the occupier of any prescribed premises causes or increases, or permits to be caused or increased, an emission. The offence is committed unless the occupier is the holder of a licence issued in respect of the prescribed premises. Occupier is defined as the person who is in occupation and control of the premises, whether or not the person is the owner.
101 There is a fundamental difference between the creation of a freedom and the conferral of a right. The grant of a licence does not give the occupier a right to do anything. For instance, suppose an occupier who occupies under a lease is prohibited under the terms of the lease from engaging in a particular activity. If the occupier obtains a licence under s 57, this will not permit him or her to engage in the activity that is prohibited by the lease. It will only create a freedom from liability for an offence under s 56. Hence, the licence is concerned with premises. As McLure P (with whom Murphy JA generally agreed) said in Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation:40
the object of s 57 is not to authorise activities that may cause emissions or alterations the subject of para (a) or para (b) in s 56(1); the object of s 57 is to license premises. The activities on the premises which make it prescribed premises for the purposes of s 56 are properly the subject of conditions of a licence under s 57.
102 Counsel for the Chief Executive Officer submitted that in the absence of any legal right of Mineralogy's that could be affected, Mineralogy has no direct interest in the subject matter of the application. Plainly, he submitted, the Chief Executive Officer could not then reasonably have formed the opinion that Mineralogy had a direct interest in the subject matter of the application.
103 This submission by the Chief Executive Officer relied upon an analogy with the question of when a person is a necessary party to litigation. The Rule of Court concerned with joinder of a person as a party as a matter of necessity has been 'the subject of voluminous judicial exegesis'.41 The approach of Lord Diplock in 1969, delivering the advice of the Privy Council in Pegang Mining Co Ltd v Choong Sam,42 is echoed by the language of the Environmental Protection Act:
[a] better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?
104 In State of Victoria v Sutton,43 McHugh J quoted this formulation and said that the rule is one of natural justice, that before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order.
105 Under this approach to joinder, a person will not be a necessary party if there is no effect on his or her legal relations: rights, duties, privileges, powers, liabilities, immunities, or disabilities. There are obvious examples where a person's legal relations might be affected by the grant of a licence. These circumstances are where the conditions of the licence interfere with another person's legal rights. Mineralogy could not point to any of its legal relations which could be affected.
106 Initially, senior counsel for Mineralogy submitted that the Desalination Licence would interfere with Mineralogy's legal rights not to have noxious substances discharged onto its property.44 This submission should be rejected.
107 On the one hand, if Mineralogy has any legal rights to prevent discharge of noxious substances, those rights will be unaffected. Putting aside the terms of Mineralogy's own Port Management Plan (as to which see below at [162]), if Mineralogy, as owner, has a legal right to prevent the discharge of noxious substances by CPMM under the terms of its lease agreements, or for the tort of nuisance, then the grant of a licence to CPMM would not remove Mineralogy's ability to restrain the breach of the lease agreements or the commission of a nuisance.
108 On the other hand, if Mineralogy does not have any right to prevent that discharge then its legal rights would also be unaffected by the grant of the licence.
Mineralogy's submissions on direct effect on practical or personal interests
109 Senior counsel for Mineralogy submitted that the test for 'direct interest' contemplated not merely circumstances in which a person's legal interests were affected, but also where the person's personal interests were affected in a practical rather than a legal sense.
110 It is ultimately unnecessary to determine finally whether s 57(2)(b)(i) extends to such personal interests. I am content to assume that it does, particularly since there will be very few examples, if any, where the legal interests of a person will be affected merely by the grant of a licence conferring a freedom from liability upon someone else. There is, however, some force in the submission on behalf of the Chief Executive Officer that the proper construction of a provision such as s 57(2)(b)(i) is unlikely to manifest an intention that stricter rules apply to an administrator than those that apply to persons with interests in relation to a judicial determination.
111 On the assumption that s 57(2)(b)(i) extends to personal interests affected in a practical way, the question is whether, on the material before him, the Chief Executive Officer could reasonably have formed the opinion that Mineralogy's personal interests were not directly affected in this practical way.
112 Mineralogy's argument in relation to each of the Amended Transhipment Licence and the Desalination Licence was that the Chief Executive Officer could not reasonably have failed to form the opinion that Mineralogy's personal interests were not directly affected because:45
(i) CPMM was claiming a right to occupy areas (G08/51 for the Amended Transhipment Licence and G08/52 for the Desalination Licence) over which Mineralogy was entitled to exclusive occupation and over which Mineralogy had duties including as the proponent of Ministerial Statements; and
(ii) the Chief Executive Officer had no evidence before him of any commercial arrangements that would identify CPMM's right to occupy G08/51 or G08/52, or to establish a transhipment facility or desalination plant in those areas.
113 Mineralogy relied on material that was not before the Chief Executive Officer, but which senior counsel for Mineralogy asserted that the Chief Executive Officer should be 'taken to know' because the material is part of the public record,46 and could be accessed online by Mineralogy's geologist on 22 May 2014.47 That material was as follows.
114 First, Mineralogy relied on the Tenement Summaries for the leases G08/51 and G08/52. Mineralogy pointed to conditions of the grant of G08/51 (which senior counsel for Mineralogy said was relevant the Amended Transhipment Licence) requiring:
(i) Mineralogy to provide an exploration and environmental management program for written approval in consultation with the Department of Environmental Protection (as it was then known); and
(ii) operations of vessels to be in accordance with conditions specified by the Department of Transport and consistently with International Collisions Regulations and with respect to the nature of fishing operations.
115 Secondly, Mineralogy pointed to the purpose of lease G08/52 (which senior counsel for Mineralogy said was relevant to the Desalination Licence) as including a jetty or port and a storage or transportation facility for coal.
116 Thirdly, Mineralogy also relied on a map created by Mineralogy's geologist which superimposed G08/51 and G08/52 on to the map attached to the Transhipment Licence.48 A problem with the map provided by Mineralogy's geologist is that it is ambiguous. It requires oral expert evidence to explain it. Senior counsel boldly attempted to fill this gap by making submissions and assertions about the effect of the map. But even his attempt to use submissions to supplement the expert evidence concerning the map involved contradictions. His submissions changed in relation to important aspects of the map.49
117 Putting aside the ambiguous nature of the map, senior counsel for Mineralogy ultimately asserted that (i) it showed that the amendments to the Transhipment Licence had expanded the area of the Transhipment Licence by between a third and a half,50 and (ii) the expanded area encroached into G08/51.
The reasons why Mineralogy's submissions on direct effect must be rejected
118 There are three reasons why Mineralogy's submissions must fail.
119 First, the difficulty with Mineralogy's submissions is that there was no material before the Chief Executive Officer, including in the revised Environmental Assessment Report, that would necessarily have prevented the Chief Executive Officer reasonably reaching the opinion that the proposed amendment to the Transhipment Licence, or the proposed Desalination Licence, were inconsistent with any of the matters to which Mineralogy referred. The Chief Executive Officer could have concluded that there was no inconsistency even if it were to be assumed that all of the matters relied upon by Mineralogy formed part of the relevant material before the Chief Executive Officer, and even if senior counsel's submissions about the effect of expert evidence could be taken as supplementing the expert evidence.
120 In other words, the Chief Executive Officer could reasonably have reached the conclusion that the proposed amendment to the Transhipment Licence and the proposed Desalination Licence involved matters to which Mineralogy had either consented or as to which CPMM had the responsibility to decide.
121 The primary material before the Chief Executive Officer to which reference was made in submissions was (i) the application for the Transhipment Licence and supporting documents, (ii) the application for amendment to it, and (iii) the application for the Desalination Licence and supporting documents. In addition, at the time of the Amended Transhipment Licence the Chief Executive Officer appears also to have had a revised Environmental Assessment Report.51
122 The material before the Chief Executive Officer included:
(i) Statements in the Transhipment Licence application (although not the request for amendments) that 'the Transhippers will operate outside of [G08/51 and G08/52]'.52
(ii) Statements in the Transhipment Licence application that although Mineralogy has the ultimate liability for the mining tenements, CPM is responsible for implementation of all aspects of the Sino Iron and Korean Steel Projects.53
(iii) A statement in the revised Environmental Assessment Report produced prior to the amendments to the Transhipment Licence that 'CPM was established to manage the development of the George Palmer Deposit associated processing and export facilities, on behalf of the Sino Iron and Korean Steel Projects (the Sino Iron Project). The iron ore mine, processing and export facility is located near Cape Preston'.54
(iv) A statement in the revised Environmental Assessment Report produced prior to the amendments to the Transhipment Licence that CPM 'currently manages the desalination plant' and that '[w]ithin the Cape Preston Port Area, the contracting company Cape Preston Port Company (CPCC) Pty Ltd, a subsidiary of CITIC Pacific Limited, operates the offshore Transhipment Facility'.55(v) Statements that the Desalination Plant was in G08/52 and that within this area 'CPM's project has exclusive access to occupy and control specific areas with the remainder of the CPIA [Cape Preston Industrial Area] for use by third parties. The proposed premise boundary for CPM's Cape Preston Licence is restricted to those areas which CPM has exclusive access'.56
(vi) Statements that 'CPM is responsible for all aspects of implementation of the project including the construction of the port development at Cape Preston.'57
123 The Chief Executive Officer could reasonably have formed the opinion in light of these matters, together with the matters upon which Mineralogy relied, that CPMM had a licence from Mineralogy to perform the activities which were the subject of the Amended Transhipment Licence and the Desalination Licence.
124 Since the Chief Executive Officer might reasonably have formed the opinion that CPMM had a licence to occupy the areas of the Amended Transhipment Licence and the Desalination Licence, and had responsibility for all aspects of the project, it is a reasonable conclusion that Mineralogy's interests would not be affected by the grant of a licence to CPMM to perform activities which it was either authorised or required to perform.
125 Secondly, and contrary to Mineralogy's submission, the absence of evidence is not evidence of absence. It would not be sufficient even if, contrary to the first point above, there were no material from which the Chief Executive Officer could reasonably form an opinion that CPMM had a right to occupy the areas that were the subject of the Amended Transhipment Licence and the Desalination Licence.
126 The absence of any material sufficient to form an opinion concerning whether CPMM had a right to occupy would not necessarily cause a reasonable person to reach a conclusion that CPMM had made an application for a licence from a position of being a trespasser, as Mineralogy submitted. A reasonable person in the Chief Executive Officer's position might reasonably have formed the opinion that other material could exist such as a contractual licence for CPMM as agent to occupy the relevant areas.
127 It was not submitted by Mineralogy that the Chief Executive Officer was required to request more material or information from CPMM in order to attempt to reach a legal opinion (assuming this to be permissible under the Environmental Protection Act) on whether the legal rights of CPMM were questionable so that Mineralogy had a direct interest in the subject matter of the application.
128 Thirdly, even if the Chief Executive Officer formed the opinion that there was doubt concerning whether CPMM had a right to occupy the relevant areas, it was still reasonable for the Chief Executive Officer to form the opinion that the Amended Transhipment Licence and the Desalination Licence would not directly affect Mineralogy's interest. This is because neither the Amended Transhipment Licence nor the grant of the Desalination Licence would preclude Mineralogy from exercising a right which it asserted to a claim for trespass based on its asserted rights to exclusive possession.
129 Senior counsel for Mineralogy conceded that Mineralogy's claims would not be extinguished by the grant of either Licence.58 As I have explained, there was no material before the Chief Executive Officer, nor any evidence before this Court, that suggested that Mineralogy's personal interests would be affected beyond its legal rights if CPMM were, in effect, a trespasser.
130 One submission concerning an alleged practical effect on Mineralogy's personal interests arising from the Amended Transhipment Licence was the suggestion by senior counsel for Mineralogy that CPMM might have engaged in a trespass in a way that could affect Mineralogy's interests when a ship moored for transhipment in an area of Mineralogy's alleged exclusive occupation where Mineralogy had proposed a shipping channel. However, at the time of the grant of the licence by the Chief Executive Officer, there was no material before the Chief Executive Officer concerning the future effect or use of this proposed shipping channel. Senior counsel for Mineralogy conceded that the proposed shipping channel did not exist at the time of the Chief Executive Officer's decision, and still does not exist.59 Senior counsel for Mineralogy also did not explain why, on his assumption that Mineralogy had a right to prevent that activity, a Chief Executive Officer acting reasonably would necessarily have reached the conclusion that CPMM would have nevertheless persisted in an unlawful activity and, if so, that Mineralogy's personal interests would be affected if Mineralogy were required to obtain an injunction to prevent that activity.
A failure to comply with s 57(2)(b)(i) would not make the decision invalid
131 The Chief Executive Officer and CPMM submitted that even if Mineralogy were correct that it had a direct interest in the subject matter of the Desalination Licence then the failure of the Chief Executive Officer to seek comments from Mineralogy would not mean that the grant of that licence was invalid.
132 An act which is done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid for the purposes of an order quashing it as opposed to an order granting a declaration or an injunction. Whether or not the act is invalid will depend upon whether it was a purpose of the legislation to invalidate any act done in breach of the condition. The purpose is determined by consideration of the language of the provision and the scope and object of the whole statute.60
133 There are a number of matters that indicate a statutory purpose that a breach of s 57(2)(b)(i) by the Chief Executive Officer does not lead to invalidity.
134 First,s 57(2)(b) regulates the exercise of functions already conferred upon the Chief Executive Officer, rather than imposing essential preliminaries to the exercise of those functions. In Project Blue Sky v Australian Broadcasting Authority,61 McHugh, Gummow, Kirby and Hayne JJ said of s 160 of the Broadcasting Services Act 1992 (Cth), that this was a factor that 'strongly indicates that it was not a purpose of the Act that a breach of s 160 was intended to invalidate any act done in breach of that section.'
135 Secondly,there would be a considerable public inconvenience from holding a licence to be invalid based on the absence of comment from a party whom the Chief Executive Officer ought to have considered to have a direct interest. The inconvenience arises because a licence holder would have no means of knowing whether its licence, on which it relied for the lawful conduct of its operations, was invalid.
136 The joint judgment in Project Blue Sky62explained that 'Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act'.
137 Thirdly,and related to the second point, the requirement in s 57(2a) to advertise for comments, and the obligation of the Chief Executive Officer to take those comments into account (s 57(3)) means that a person does not lose the capacity to make comments even if the person's comments are not sought under s 57(2)(b)(i).
138 Fourthly, a breach of s 57(2)(b)(i) might occur in a particularly trivial way. The subsection requires not merely the seeking of comments but also that the applicant is advised that the application has been received. It is hard to see how any serious consequence could arise if the Chief Executive Officer were to fail to advise the applicant that the application had been received, but nevertheless advertise, and then advise the applicant that the application had been granted or refused (with a power for the applicant to appeal: s 102)
139 Against all these matters is the use of the imperative language in the opening words of s 57(2) that upon receiving an application 'the Chief Executive Officer shall' (emphasis added).
140 There is no doubt that the use of imperative language can be a significant factor in the consideration of whether it was a purpose of the legislation to invalidate any act done in breach of the condition. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs,63 each member of the majority emphasised the importance of the imperative language ('must') of the provision, especially in contrast with the use elsewhere of 'may'. For instance, McHugh J said:64
If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no 'partial compliance' with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act.
141 Nevertheless, the imposition of a legal duty (as was the case in Project Blue Sky) does not necessarily dictate a conclusion of invalidity of a decision that fails to comply with that duty. The decision in Project Blue Sky was not invalid despite the use of imperative language. Similarly, in this case, notwithstanding the use of the imperative language of 'shall', the other four factors that I have mentioned manifest a statutory purpose that a breach of s 57(2)(b)(i) by the Chief Executive Officer would not have made invalid the grant of the Desalination Licence.
Ground 3: Whether general principles of natural justice apply to amendments
142 Mineralogy's argument in relation to this ground was that the Chief Executive Officer was required to comply with common law principles of procedural fairness in relation to the grant of amendments to the Transhipment Licence.65 Senior counsel for Mineralogy conceded, and I accept, that these common law principles did not apply to the grant of the Desalination Licence because s 57(2)(b)(i) contained the relevant requirements for a grant of a licence.66 The preliminary issue, then, is the extent to which the provision allowing amendments, s 59(1) (set out above at [73]) imports common law requirements of procedural fairness.
143 The content of procedural fairness is a matter of construction and implication of the statutory provision. In Kioa v West,67 Mason J said that where a statute makes provision for a decision to be made, in the making of the decision 'the application and content of ... the duty to act fairly depends to a large extent on the construction of the statute'. This requires a focus on the 'scope and purpose of the statutory enactment'.68 The same approach to judicial review is taken when considering the content of an implication of reasonableness. As Hayne, Kiefel and Bell JJ said in Minister for Immigration and Citizenship v Li,69 the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably70 and that the legal standard of reasonableness must be the standard indicated by the true construction of the statute.71
144 Mineralogy's submissions on this ground must be rejected because there was no obligation to take into account comment from Mineralogy in relation to amendments to the Transhipment Licence made under s 59(1) of the Environmental Protection Act. This is for four reasons.
145 First, the language of s 59 is an immediate problem with Mineralogy's submission concerning the construction and implication from s 59(1) that it had a right to be heard about the content of any amendment to the licence. Unlike other provisions (such as s 57), which contain detailed provisions concerning the content of a third party's right to comment to the Chief Executive Officer, there is a complete absence of any express obligation for comment in s 59. Instead, the power of the Chief Executive Officer is expressed in broad terms. And the power is expressly made exercisable on the initiative of the Chief Executive Officer, without even an application from the holder of the licence (s 59(2)).
146 Secondly, Mineralogy's submission is also inconsistent with the detailed provision in s 59B for the procedure for amending a licence. That procedure provides for an obligation for the Chief Executive Officer to give the holder of the licence a written notice before amendment is made allowing the holder to make representations to the Chief Executive Officer to show why the action should not be taken (s 59B(2), 59B(3)(b)). There is no provision in the detailed procedure in s 59B for the Chief Executive Officer to seek comment from any third party.
147 Thirdly, a general right for third parties to comment upon any amendment to a licence would be considerably greater than the third party's right to be heard in relation to the grant of the licence itself.
148 Senior counsel for Mineralogy conceded, and I accept, that Mineralogy's submission has the effect that the content of the obligation of procedural fairness would be more onerous for the amendment to a licence than for the grant of a licence.72 In relation to 'comment' from third parties, s 57(2)(b) and (3) of the Environmental Protection Act provides for the Chief Executive Officer to 'seek' and 'take into account' comments from any person which or who 'in the opinion of the Chief Executive Officer has a direct interest in the subject matter of that application'. But if Mineralogy's submission were correct, then in relation to amendments under s 59, the Chief Executive Officer would have the more onerous obligation to seek, and take into account, comments from every person whose interests were actually affected, whether or not that person's interests were directly affected, and irrespective of the opinion of the Chief Executive Officer.
149 Fourthly, a matter militating against any implication of procedural fairness that required comment to be received from any affected third party is that it would create considerable uncertainty. For instance, it could not be suggested that all third parties should be invited to comment upon amendments such as an 'administrative change to the format of the works approval or licence which does not alter the obligations of the occupier of the premises to which the licence relates' (s 59(1)(f)). So which obligations should require comment and consideration, and when?
150 Senior counsel for Mineralogy suggested that natural justice would require a person to be given the opportunity to comment if someone was likely to be 'severely adversely affected'.73 But those words are not contained in the subsection. Even if they could be implied, how would such a criterion to be assessed by the Chief Executive Officer in the absence of any submissions from the affected party (especially as the amendment might be 'initiated' by the Chief Executive Officer under s 59(2))? The considerable uncertainty that this implication would introduce is a powerful reason why no such implication can be made.
Ground 4: Alleged inconsistency between the Transhipment and Desalination Licences and the Ministerial Statements
The rules concerning inconsistency
151 Section 57(4) of the Environmental Protection Act provides that if an application for a licence is related to a pt IV proposal, the Chief Executive Officer shall not grant the licence if it is contrary to, or otherwise than in accordance with, an implementation agreement or decision. The same restriction applies to the amendment of a licence.74 Therefore, the Chief Executive Officer may not grant a licence or impose conditions, or amend a licence in a manner which is contrary to the requirements of any Ministerial Statement.
152 There is a difficulty that faces submissions concerning inconsistency between a licence and a Ministerial Statement. This difficulty is that apart from conditions which might attach to a Ministerial Statement, there will generally be no inconsistency between the grant of a licence under pt IV of the Environmental Protection Act and the benefits conferred by a Ministerial Statement. The reason why there will generally be no inconsistency is becauseneither a licence nor a Ministerial Statement confers any right upon any person to engage in any activity. Indeed, a licence does not require a person to engage in any activity at all.
153 An analogy can be drawn with the decision of the High Court of Australia in State of Western Australia v Brown.75 The issue in that case concerned whether native title interests had been extinguished by the grant of mineral 'leases' in relation to the use and development of land over which the native title interest existed. Crucial to the unanimous joint judgment was the conclusion that the mineral 'leases' were not leases, but licences. The holders of the mineral 'leases' had no right to exclusive possession.76 The mineral 'lease' was a liberty or freedom (or, in Hohfeldian terms, a 'privilege'). It was a freedom not to be excluded. Conversely, the grantor of the mineral 'lease' had 'no right' to exclude the holder of the mineral 'lease' from the holder's liberty to mine anywhere on the land or to build on the land.
154 The native title interests were also a liberty or freedom. The effect of the native title interest was that the holder of native title could not be excluded from activities involving the following: 'to access and camp on the land, to take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land, to engage in ritual and ceremony on the land and to care for, maintain and protect from physical harm particular sites and areas of significance'.77
155 When dealing with liberties, questions of inconsistency can only be understood in terms of legal conflict. This issue is not one of some conflict in fact.78It is claim rights that are factually exercised, not liberties or freedoms. And in Brown, as the High Court explained, the freedom to mine was not inconsistent with the freedom to access and camp on the land etc.79 Neither person would commit trespass by performing the act of mining or accessing the land. But neither had exclusive rights to do so.
156 The same will generally be true in relation to the freedoms granted by a licence and a Ministerial Statement under pt V of the Environmental Protection Act. One exception to this is in relation to positive conditions which attach to the Ministerial Statement or Licence. By s 47(1) of the Environmental Protection Act, the proponent of a Ministerial Statement is under a duty to ensure that a proposal assessed under pt IV is implemented in accordance with implementation conditions. Under s 58(1), the holder of a licence is also under a duty not to contravene any of the conditions to which the licence is subject. If the conditions of a licence and a Ministerial Statement are inconsistent then the proponent and licence holder would be subject to inconsistent legal duties.
Mineralogy's submissions
157 In written submissions, Mineralogy submitted that the amendments to the Transhipment Licence and the grant of the Desalination Licence were inconsistent with the requirements of Ministerial Statements 635 and 822 because Mineralogy is 'the only person with obligations including the obligation to implement the Port Environment Management Plan and the Dust Management Plan'.80 In oral submissions, senior counsel for Mineralogy submitted that the inconsistency arose because Ministerial Statement 635 required Mineralogy to apply for a works approval and a licence.81
158 These submissions must be rejected for three reasons.
159 First, assuming that Ministerial Statement 635 had the effect that Mineralogy was required to apply for a licence, nothing in the Environmental Protection Act prevents, or prevented, Mineralogy applying for a licence even on the same terms and over the same premises as a licence applied for by CPMM. In Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation,82 McLure P said that 'there is no justification in the text or purpose of the Act to require, as a matter of statutory construction, that there be only one licence for multiple prescribed activities where there is "a single premises"'.
160 Secondly, and in any event, this submission of inconsistency assumes that (i) Mineralogy will remain the proponent of Ministerial Statement 635, and (ii) Mineralogy be solely responsible for its implementation. Neither of those assumptions was the subject of argument in this proceeding but both were rejected in Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 2).83
161 Thirdly,in relation to the Desalination Licence and the saline or brine outfall that Mineralogy said falls within the area of G08/52,84the evidence before this Court was that the saline outfall is at the same point as required by Ministerial Statement 635 (as amended).
162 Conditions 9-1 and 9-2 of Ministerial Statement 635 require the proponent to prepare and implement a Port Management Plan.85 The Chief Executive Officer submitted,86 without demur from Mineralogy, that the Port Management Plan requires the saline outfall of the desalination plant to be in the location identified in the Desalination Licence.87
163 In oral submissions, senior counsel for Mineralogy made the further argument that the grant of the Desalination Licence was inconsistent with Mineralogy's exclusive right of possession under G08/51 for the purposes of use for a shipping channel.88
164 I have already explained above at [101] and [152] - [156] the reasons why this submission must be rejected. In summary, there is no inconsistency with the freedom from liability conferred by a licence on one person and another person's exclusive right to possession. The licence does not require CPMM to do anything. Whether it is entitled to do so will turn upon contractual arrangements that it has, or that related companies have, with Mineralogy.
A discretion in any event to refuse relief
Legal principles concerning the exercise of discretion to refuse certiorari
165 The decision to grant a writ of certiorari to quash a decision is a discretionary decision.89
166 There is one well recognised situation where discretion will be exercised to refuse to quash a decision even if the statutory purpose is that the decision was invalid. This is where the quashing of the decision would not have made (a backward looking approach), or will not make (a forward looking approach), any difference. The leading decision is equivocal concerning whether the correct approach to apply is the backward looking approach, or the forward looking approach, or both.90
167 Even if there is a prospect of a different decision would have been, or might be, made there are authorities that establish another basis upon which discretion might be exercised to refuse prerogative relief. This is where there is substantial prejudice.91
168 The Chief Executive Officer and CPMM relied upon both bases for the refusal of prerogative relief in the event that I determined either decision to be invalid.
Whether the discretion would have been exercised in this case
169 It is not necessary in this case to speculate on whether I would have exercised discretion to refuse prerogative relief if I had found that either the amendments to the Transhipment Licence or the grant of the Desalination Licence were invalid. The exercise of this discretion would be affected by the basis upon which a finding had been made that either licence was invalid.
170 However, in deference to the substantial submissions of all counsel, I explain below why there is a strong case that the prejudice to CPMM, compared with the lack of prejudice to Mineralogy, could provide a strong reason for a discretionary denial of relief.
171 There was no evidence before this Court of any substantial adverse effect on Mineralogy concerning the grant of the Desalination Licence or the amendments to the Transhipment Licence. The highest that Mineralogy's evidence of prejudice appeared to reach was as follows.
172 As to the Amended Transhipment Licence, Mineralogy's evidence was that its only objection was in relation to the part that was said to be in the area of G08/51.92 Mineralogy said that Anchorage Point A designated by the harbourmaster is within the area of G08/51.93 Mineralogy said that it 'does not want CPMM, Sino Iron and Korean Steel operating any premises within G08/51'.94 But if Mineralogy genuinely has rights to prevent this access then Mineralogy can bring an action to enforce those rights. It is no worse off by the failure of prerogative relief.
173 As to the Desalination Licence, Mineralogy's evidence was that its objection was 'only to the extent that it relates to the brine outfall located on the outer side of the breakwater'. Mineralogy says that 'this is in an area in which further work will be carried out in order to construct a deep water jetty which will be accessed via the shipping channel'.95
174 Mineralogy did not explain whether, or how, the brine outfall would interfere with the work to be carried out for construction of a deep water jetty. Mineralogy did not explain whether the construction of the deep water jetty would occur within the time period of the Desalination Licence (which expires on 25 November 2015). Indeed, there was not even evidence of any preparatory work by Mineralogy in the period between the grant of the General Purpose Leases in 2003/2004 and the end of January 2014 (when Mineralogy discovered the amendment that had been made to the Transhipment Licence).
175 In contrast, Mr Watson gave evidence of the effect on CPMM if the Amended Transhipment Licence and the Desalination Licence were quashed.96
176 He explained the following in relation to the Amended Transhipment Licence.
(i) Without the amendment to incorporate the inner anchorages, CPMM would be unable to bring geared vessels to the inner anchorages and would need to restrict its loading activities to the outer anchorages, which would be less efficient and safe due to the distance from shore.
(ii) Until the bringing of this application, Mineralogy did not ever raise or discuss with him any difficulties with the inner anchorages, nor did Mineralogy ever suggest that there was any prejudice that Mineralogy would suffer if the inner anchorages were used.
177 In relation to the Desalination Licence, he said that the Desalination Licence is critical to CPMM's operations at the Project because:
(i) as demonstrated in the pt IV Approvals (which were provided to Mineralogy in 2003 (Ministerial Statement 635) and 2009 (Ministerial Statement 822)), CPMM has constructed the 51 gigalitre desalination plant;
(ii) the desalination plant supplies water to the Project, which is essential for a number of key steps in the production process, including:
(a) the operation of the power station (where water is used to generate steam and operate the gas turbine);
(b) operating the ag and ball mills and the wet magnetic separation process to crush and separate ore;
(c) production and transportation of concentrate and tailings along the 29 km slurry pipeline; and
(d) dust controls throughout the production process.
(iii) Ancillary infrastructure has been built, including a dewatering plant located at the port, which will recover water and pipe it back to the concentrator area;
(iv) the costs of shutting down and then recommencing operations would be considerable;
(v) once the limited stores of water have been used, there are no alternate sources of water available given the remote location of the Project and the unsuitability of sea water for production purposes; and
(vi) an interruption to the desalination plant facility of a significant period (say, more than a week) might result in a complete project shutdown.
178 On top of these matters of operational prejudice, there is also the prejudice arising from the legal effect that quashing the Desalination Licence or the Amended Transhipment Licence would mean for CPMM. It would mean that CPMM has been acting unlawfully, and would potentially be open to prosecution.
179 In an attempt to minimise this prejudice to CPMM, senior counsel for Mineralogy made the novel submission that s 11 of the Civil Judgments Enforcement Act 2004 (WA) allows for the prospective dating of orders, including prospective quashing of administrative decisions. That section provides as follows:
(1) A judgment has effect -
(a) at the time it is given; or
(b) if it provides, or the court giving it orders, that it has effect from an earlier or later time, at that time.
181 Senior counsel submitted that this provision had the same effect as s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). That section provides that on an application for an order of review in respect of a decision, the Federal Court has the discretion to make an order quashing or setting aside the decision with effect from the date of the order or from such earlier or later date as the court specifies.
182 The analogy with s 16(1)(a) of the Administrative Decisions (Judicial Review) Act is useful for two reasons. Both reasons illustrate why s 11 of the Civil Judgments Enforcement Act does not create a general power for a Western Australian court to backdate or postdate the effect of a judgment.
183 First,the language of s 11 of the Civil Judgments Enforcement Act is concerned with issues of timing based upon what is already contained in a court order or judgment. It does not speak of the power of a court to make such an order. In contrast, s 16(1)(a) expressly provides for the power for the Federal Court, or Federal Circuit Court, in its discretion, to make that order.
184 Secondly,s 16(1)(a) is a provision which is concerned only with the context of judicial review of administrative decisions. An administrative decision can have legal effect even if invalidly made. As French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said in New South Wales v Kable,97 quoting from Professor Wade,98 '[i]t is fallacious to suppose that an act can be effective in law only if it has always had some element of validity from the beginning'.
185 In contrast, s 11 of the Civil Judgments Enforcement Act applies (by s 5) to every type of case where a judgment is given in Western Australia by the Supreme Court, the District Court, or the Magistrates Court. It would be revolutionary for a legislative provision to provide for a general power, unlimited by any specific criteria, for a Western Australian court to backdate, or postdate, the effect of any judgment. Any person with existing legal rights could be subjected to a final decision concerning the ability to enjoy those rights where that enjoyment is, at the discretion of the court, deferred or backdated to a chosen date.
186 In Ha v New South Wales,99 various States argued that if a line of decisions concerning franchise fees were to be overruled, and a tobacco licence fee were found to be unconstitutional, then the High Court should overrule those cases with prospective effect only. In response to this submission, Brennan CJ, McHugh, Gummow and Kirby JJ said:100
A hallmark of the judicial process has long been the making of binding declarations of rights and obligations arising from the operation of the law upon past events or conduct.101 The adjudication of existing rights and obligations as distinct from the creation of rights and obligations distinguishes the judicial power from non-judicial power.
187 The same reasoning would apply to the use of a general power to quash the amended Transhipment Licence or the Desalination Licence with prospective effect only. Unsurprisingly, senior counsel for Mineralogy could not point to any decision where s 11 of the Civil Judgments Enforcement Act had been construed or applied in a manner which, according to his submission, conferred this general non-judicial power upon all Western Australian courts in all cases.
Conclusion
188 Mineralogy's applications for writs of certiorari to quash the decision to amend the Transhipment Licence and to quash the decision to grant the Desalination Licence are rejected.
189 As for Mineralogy's ground of review based on a lack of power for the Chief Executive Officer to amend the Transhipment Licence, this ground should be rejected following the decision of the Court of Appeal in Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation.102
190 As for Mineralogy's ground of review based on s 57(2)(b)(i), this claim fails because:
(1) in relation to the amendments to the Transhipment Licence, this subsection does not apply;
(2) in relation to both the Amended Transhipment Licence and the Desalination Licence, the Chief Executive Officer, properly understanding the law, could reasonably have reached the conclusion that Mineralogy had no direct interest in the subject matter of the applications; and
(3) in any event, the failure to comply with s 57(2)(b)(i) does not render the grant invalid.
191 As to the ground of review based on the application of general law principles of natural justice to amendments to a licence under s 59, that ground of review must be rejected because the Environmental Protection Act leaves no scope for application of general principles of natural justice in s 59.
192 As to the ground of review based on inconsistency between Ministerial Statement 635 and the licences (as amended), this ground of review must be rejected because there is no inconsistency.
193 Mineralogy's application for judicial review also sought 'declarations'. In light of these reasons any claim for a declaration must fail. But nowhere in its application or written submissions did Mineralogy explain the terms of any declarations sought. Nowhere in its submissions did Mineralogy explain whether or why a declaration would add anything to the writ of certiorari that was sought. In both written and oral submissions, a declaration was not even mentioned. The submissions all proceeded on the basis that the determination of the issues raised by the grounds of review would concurrently address all issues concerning the Amended Transhipment Licence and Desalination Licence should be quashed.
194 The application must be dismissed.
1 Exhibit B (Affidavit of Mr Robinson, 24 June 2014) [6].
2 ts 81 (14 November 2014); Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353.
3 ts 81 (14 November 2014).
4 Submissions of Mineralogy, 27 August 2014 [6].
5 ts 68 (14 November 2014); Exhibit B (Affidavit of Mr Robinson, 24 June 2014) [7].
6 Exhibit E (Affidavit of Mr Watson, 13 June 2014).
7Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) sch 1.
8 ts 43, 99 - 100, 117 (14 November 2014); Submissions of the Department of Environmental Regulation, 18 July 2014 [8] - [36], [38].
9 ts 43 (14 November 2014).
10 Exhibit D (Affidavit of Ms Laszig, 6 June 2014).
11 Exhibit E (Affidavit of Mr Watson, 13 June 2014) BNW 7.
12Rules of the Supreme Court 1971 (WA) O 56 r 1(1).
13 Exhibit A (Affidavit of Mr Robinson, 23 May 2014) [12] - [17].
14 Amended application, [7].
15 Amended application, [6], [8].
16 Amended application, [8].
17 ts 77 (14 November 2014).
18 ts 77 - 78 (14 November 2014).
19 ts 77 - 78 (14 November 2014).
20Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353.
21Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353, 367 [92].
22Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353, 354 [1].
23Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353, 368 - 369 [99] (McLure P), 376 [143] (Murphy JA).
24Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353, 359 [34].
25Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353, 368 [96].
26Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353, 375 [137].
27 ts 81 (14 November 2014).
28 Submissions of Mineralogy, 27 August 2016 [6].
29 See ts 40 (22 March 2013).
30 See Harding M and Malkin I, 'The High Court of Australia's Obiter Dicta and Decision-Making in the Lower Courts' (2012) 34(2) Sydney Law Review 239.
31Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, 150 - 151 [134] (the Court).
32Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144, 179 - 180 [57] (French CJ).
33 ts 41 (14 November 2014). Submissions of the Chief Executive Officer, 18 July 2014, [45].
34 ts 54 (14 November 2014);.
35R v Connell and Another; Ex parte The Hetton Bellbird Collieries Limited [1944] HCA 42; (1944) 69 CLR 407, 430 (Latham CJ); A v Corruption and Crime Commissioner [2013] WASCA 288 [121] (Martin CJ & Murphy JA).
36The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [143] - [147].
37Davis v Bunn [1936] HCA 44; (1936) 56 CLR 246, 265 - 266.
38 ts 42 (14 November 2014).
39 Hohfeld, W 'Fundamental legal conceptions as applied in judicial reasoning' (1917) 26 Yale Law Journal 710, 724, 746.
40Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353, 365 [73].
41Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52.
42Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52, 55 - 56.
43State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291, 316 - 317 [76] - [78].
44 ts 50 (14 November 2014).
45 Written submissions in reply for Mineralogy, 27 August 2014 [26] - [28].
46 ts 56 (14 November 2014).
47 Exhibit C (Affidavit of Mr Spielvogel, 23 May 2014) [6].
48 Exhibit C (Affidavit of Mr Spielvogel, 23 May 2014) CS 3.
49 ts 66 (14 November 2014).
50 ts 64 (14 November 2014).
51 Exhibit E (Affidavit of Mr Watson, 13 June 2014) BNW 8.
52 Exhibit D (Affidavit of Ms Laszig, 6 June 2014) page 12.
53 Exhibit D (Affidavit of Ms Laszig, 6 June 2014) page 14.
54 Exhibit E (Affidavit of Mr Watson, 13 June 2014) page 183.
55 Exhibit E (Affidavit of Mr Watson, 13 June 2014) page 185.
56 Exhibit D (affidavit of Ms Laszig) KL3, pages 191, 199, 201.
57 Exhibit D (affidavit of Ms Laszig) KL3, page 199.
58 ts 44 (14 November 2014).
59 ts 60 - 61 (14 November 2014).
60Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 390 - 391 [93] (McHugh, Gummow, Kirby & Hayne JJ).
61Project Blue Sky Inc v Australian Broadcasting Authority1998] HCA 28; (1998) 194 CLR 355, 391 [94].
62See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 392 [97] (McHugh, Gummow, Kirby & Hayne JJ).
63SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294.
64SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294, 321 [77] (McHugh J), 344 [166] (Kirby J), 354 [206] (Hayne J).
65 ts 42 (14 November 2014).
66 ts 80 (14 November 2014).
67Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584.
68FAI Insurances Ltd v Winneke[1982] HCA 26; (1982) 151 CLR 342, 368 (Mason J); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 349 [24] (French CJ).
69Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.
70Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 362 [63].
71Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 364 [67].
72 ts 80 (14 November 2014).
73 ts 80 (14 November 2014).
74Environmental Protection Act 1986 (WA) s 59B(7)(b).
75State of Western Australia v Brown [2014] HCA 8; (2014) 88 ALJR 461.
76State of Western Australia v Brown [2014] HCA 8; (2014) 88 ALJR 461, 469 [41] - [47].
77State of Western Australia v Brown [2014] HCA 8; (2014) 88 ALJR 461, 468 [35].
78State of Western Australia v Brown [2014] HCA 8; (2014) 88 ALJR 461, 470 [51].
79State of Western Australia v Brown [2014] HCA 8; (2014) 88 ALJR 461, 471 [57].
80 Mineralogy's written submissions, 27 August 2014, [18].
81 ts 71- 72 (14 November 2014); Exhibit A (Affidavit of Mr Robinson, 23 May 2014) page 21.
82Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353, 366 [84].
83Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 2) [2014] WASC 444.
84 ts 69 (14 November 2014).
85 Exhibit A (Affidavit of Mr Robinson, 23 May 2014) pages 13 - 14.
86 Written submissions of the Chief Executive Officer, 18 July 2014, [81(c)].
87 Exhibit A (Affidavit of Mr Robinson, 23 May 2014) pages 50 - 51, 75, 154, 166.
88 ts 41, 44, 46 (14 November 2014).
89Re McBain; Ex Parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372.
90Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145, 147 (the Court). See Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [112], [123] (Murphy JA; Pullin & Buss JJA agreeing).
91Re Minister for Indigenous Affairs; Ex parte Woodley [No 2] [2009] WASC 296 [46] (Martin CJ) citing Re Smith and West Australian Development Corporation; Ex parte Rundle (1991) 5 WAR 295;Gavranich v Shire of Wanneroo (Unreported, WASC, Library No 980473, 25 August 1998); Savage v Tech Explorations Ltd(Unreported, WASC, Library No 7285, 16 September 1988).
92 Exhibit B (Affidavit of Mr Robinson, 24 June 2014) [6].
93 Exhibit A (Affidavit of Mr Robinson, 23 May 2014) [20].
94 Exhibit A (Affidavit of Mr Robinson, 23 May 2014) [21].
95 Exhibit B (Affidavit of Mr Robinson, 24 June 2014) [7].
96 Exhibit E (Affidavit of Mr Watson, 13 June 2014) [56] - [58].
97New South Wales v Kable [2013] HCA 26; (2013) 87 ALJR 737, 744 [22].
98 Wade H W R, 'Unlawful Administrative Action: Void or Voidable?' (1967) 83 Law Quarterly Review 499, 512.
99Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465, 503 - 504.
100Rola Company (Australia) Pty Ltd v The Commonwealth [1944] HCA 17; (1944) 69 CLR 185, 203.
101Precision Data Holdings Ltd v Wills(1991) 173 CLR 167, 188 (the Court).
102Eclipse Resources Pty Ltd v Chief Executive Officer, Department of Environment and Conservation [2013] WASCA 152; (2013) 45 WAR 353.
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