Nth Qld Conservation Council Inc v Executive Director, Qld Parks and Wildlife Service

[2000] QSC 165

SUPREME COURT OF QUEENSLAND

CITATION:

Nth Qld Conservation Council Inc v Executive Director, Qld Parks & Wildlife Service [2000] QSC 165

PARTIES:

NORTH QUEENSLAND CONSERVATION COUNCIL INC
(applicant)
v
THE EXECUTIVE DIRECTOR, QUEENSLAND PARKS AND WILDLIFE SERVICE  
(respondent)

FILE NO:

No S3728 of 2000

DIVISION:

Trial Division

DELIVERED ON:

18 May 2001

DELIVERED AT:

Brisbane

HEARING DATE:

Decision on the papers without oral hearing

JUDGE:

Mullins J

ORDER:

1.  That the application of William Billy Peter Tait filed on 19 April 2001 is dismissed.

2.  That William Billy Peter Tait is to pay the costs of the applicant, North Queensland Conservation Council Inc, and the respondent, Executive Director, Queensland Parks and Wildlife Service, of the application to be assessed.

CATCHWORDS:

PRACTICE AND PROCEDURE – joinder of parties – standing to seek joinder in a judicial review application – whether a person can identify an interest in a decision which is that person's interest.

Judicial Review Act 1991, s 7, s 20, s 28

Nth Qld Conservation Council Inc v Executive Director, Qld Parks & Wildlife Service [2000] QSC 172
United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520

COUNSEL:

MD Hinson SC and DP O'Brien for the respondent Executive Director, Queensland Parks and Wildlife Service

SOLICITORS:

The applicant William Billy Peter Tait in person
Lestar Manning for the applicant North Queensland Conservation Council Inc
CW Lohe for the respondent Executive Director, Queensland Parks and Wildlife Service

1. MULLINS J:  On 19 April 2001 William Billy Peter Tait ("Mr Tait") filed an application in substance seeking to be joined as the second applicant in application No S3728 of 2000.  Mr Tait proposed in the application that it be decided without an oral hearing.  In addition to the application, he filed his affidavit on 19 April 2001 and forwarded to the court a draft order. 

1. On 8 May 2001 the respondent in the main proceeding (to whom I shall refer as "the respondent") filed affidavits of Anne Margaret Fry and Tina Louise Taylor and an outline of submissions that were settled by Mr Hinson SC and Mr O'Brien of Counsel. 

1. On 10 May 2001 the applicant in the main proceeding (to whom I shall refer as "the applicant") filed the affidavit of Leslie Anthony Manning and a written submission in response to the application of Mr Tait.

1. Both the applicant and the respondent seek an order that Mr Tait's application be refused with costs.  Mr Tait has not responded to the material relied on by the applicant and the respondent and has not abandoned the request for a decision without an oral hearing.

1. The volume of material required to be considered for this application and the fact that it is contested mean that it is not strictly suitable to be dealt with on the papers.  Because full submissions have been made by all parties interested in the application and having regard to the complete lack of merit in Mr Tait's application which will be apparent from the following reasons, I have decided to proceed with disposing of the application without an oral hearing.  Dealing with this application in that way should not be considered as endorsement of the course in seeking to proceed without an oral hearing where the matter involves considerable material and is contested. 

1. The main proceeding is an application for a statutory order of review pursuant to the Judicial Review Act 1991 ("JRA") in respect of the decision of the respondent to approve an application to renew a permit G90/494 by granting Permit No G99/194 on 14 February 2000 to the Crown in right of the State of Queensland acting through the Department of Natural Resources. That permit was to develop a harbour and associated works at Nelly Bay on Magnetic Island. The respondent filed an application on 17 May 2000 for an order that the applicant's application be dismissed on the grounds that the applicant was not a person aggrieved by the decision within s7 of the JRA or that the applicant did not file its application for a statutory order of review within a reasonable time after the decision was made.  That application was heard on 24 May 2000 by Chesterman J. 

1. On 14 June 2000 Chesterman J dismissed the application filed on 17 May 2000 for an order that application S3728/2000 be dismissed.  Chesterman J found that the applicant's application for a statutory order of review was not an abuse of process and that the applicant had standing to bring the proceeding.  Chesterman J also found that the application for the statutory order of review was made within time.     The reasons for Chesterman J's decision were published as Nth Qld Conservation Council Inc v Executive Director, Qld Parks & Wildlife Service [2000] QSC 172.

1. On 14 June 2000 Chesterman J made orders in relation to the further conduct of the main proceeding.  One of the orders was that the respondent provide the applicant with a statement of reasons on or before 4pm on 5 July 2000.  According to the affidavit of Ms Fry, the respondent negotiated an extension of time with the applicant and the statement of reasons dated 17 July 2000 regarding the respondent's decision made on 14 February 2000 to grant Permit No G99/194 were forwarded to the solicitor for the applicant.       

1. If Mr Tait were successful in obtaining any of the orders which he has sought in paragraphs 1 to 4 of his application (dealing with his standing to apply to be joined, the joinder of him as an applicant in the proceedings and relief in relation to requesting and receiving a statement of reasons for the decision of the respondent), he seeks in paragraph 7 of the application an order that the respondent pay to him the sum of money which would be required by the Registrar from Mr Tait to file by post an application for extension of time and leave to appeal from the decisions made by His Honour Judge Wall QC in the Planning and Environment Court on 16 October 2000 and 1 March 2001 in Planning & Environment Application No D311 of 2000.  In addition Mr Tait foreshadows in his affidavit that, upon his being joined as an applicant in this proceeding, this proceeding ought to be adjourned to enable the Court of Appeal to consider Mr Tait's applications for leave to appeal from the decisions of the Planning and Environment Court and related applications.

1. A copy of application D311 of 2000 is Exhibit "AMF1" to Ms Fry's affidavit.  It shows that Mr Tait was seeking declarations in respect of the validity of the Integrated Planning Act 1997 and in relation to the operation of the Coastal Protection and Management Act 1995 in respect of work relating to the foreshore at Townsville including "at the site of the recently proposed development proposal for Nelly Bay at Magnetic Island". His Honour Judge Wall QC found that there was no basis for any part of the application against any of the named respondents and the application was dismissed. Mr Tait then sought to file an application for leave to appeal against that decision and would not pay the fees requested by the registry. He then sought a declaration in application D311 of 2000 from the Planning and Environment Court in relation to extending the time for filing an application for leave to appeal to the Court of Appeal and for orders in relation to the waiver of filing fees. That application was found to be incompetent and struck out on 1 March 2001. In addition, Mr Tait had sought to file an application under the JRA concerning orders for costs made by the Court of Appeal, but was required to obtain leave of the court, before the application could be filed.  The application for leave was heard by Cullinane J on 19 February 2001.  The application for leave was refused. 

1. There is no reference in application D311 of 2000 to the decision of the respondent which is the subject of this proceeding.  Mr Manning swears that the issues in Mr Tait's application before the Planning and Environment Court were of a different nature to the applicant's application under the JRA and the only common element is that the two proceedings relate to proposed development in the Nelly Bay area.  It is also apparent that neither the applicant nor the respondent was a party to Mr Tait's proceedings in the Planning and Environment Court. 

1. Mr Tait claims he is bringing the application to join as a party to the proceeding in the interests of the general public.  He claims that he has the standing to apply to be joined on the basis that he is:

"(a)       a licence (sic) speedboat operator;

(b)a relatively experienced public interest litigator with real and pertinent knowledge and information to contribute;

(c)         a long time public interest advocate; and;

(d)one who has made voluminous submissions to various courts of law and levels of government, in relation to the environment, and, social justice related issues."

In addition, Mr Tait claims that there have been breaches of customary law and statutory legislative provisions for the principles of ecologically sustainable development such as public participation in decision making processes and social equity.  He also claims that one aspect of the decision made by Chesterman J in the decision on 14 June 2000 was per incurium and wrong.

1. An application to be made a party to an application pursuant to the JRA is governed by s 28 of the JRA. It is concomitant to s 20 of the JRA which provides that a person who is aggrieved by a decision may apply to the court for a statutory order of review. Section 7 of the JRA deals with the meaning of a person aggrieved by a decision.  That assists in determining whether a person is "interested in a decision".  A person seeking joinder must be able to identify a relevant interest in the decision which is that person's interest:  United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520, 527-529.

1. Mr Tait's interest in the decision which is the subject of the proceeding is to enable him to prosecute the issues which he has unsuccessfully pursued in application D311 of 2000.  Mr Tait has failed to identify any effect of the subject decision on his personal interests as a licensed speedboat operator and fisherman which gives him an interest in the subject decision sufficient to justify his joinder and fails to identify any issue which he wishes to raise which is a matter of public interest concerning the subject decision.  In addition, the timing of this application supports the conclusion that Mr Tait's real interest in seeking to become a party to the proceeding is to secure the advantage which he seeks in paragraph 7 of the application. 

1. To the extent that Mr Tait wishes to put in issue Chesterman's J decision that the applicant's application for a statutory order of review was made within time, the respondent did not appeal against that decision.  When the parties to the decision accept it, there is no basis whatsoever for Mr Tait to seek to dispute that decision. 

1. Paragraph 4 of the application seeks an order that the respondent give to the applicant and Mr Tait a written statement of reasons for the subject decision.  That highlights the lack of association between Mr Tait and the applicant (which is deposed to by Mr Manning), as the applicant received the statement of reasons on 17 July 2000. 

1. Both the applicant and the respondent made strong submissions that Mr Tait's material does not disclose any basis for the orders or declarations sought by him and does not provide any relevant evidence of Mr Tait having any sufficient interest in the subject decision which would support his joinder as a party to the proceeding.  As is apparent from the foregoing reasons, those submissions are well made. 

1. By paragraph 6 of the application Mr Tait sought that there be no order as to costs.  He has claimed that he is of limited financial means.  Mr Tait elected to bring an application which was misconceived.  He was put on notice that both the applicant and the respondent sought an order for costs.  In the circumstances, there is no reason why costs should not follow the event.

1. I therefore order:

1.That the application of William Billy Peter Tait filed on 19 April 2001 is dismissed.

2. That William Billy Peter Tait is to pay the costs of the applicant, North Queensland Conservation Council Inc, and the respondent, Executive Director, Queensland Parks and Wildlife Service, of the application to be assessed.