Oakey Coal Action Alliance Inc and New Acland Coal Pty Ltd

[2020] HCATrans 154

[2020] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B34 of 2020

B e t w e e n -

OAKEY COAL ACTION ALLIANCE INC

Appellant

and

NEW ACLAND COAL PTY LTD

First Respondent

CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND SCIENCE

Second Respondent

PAUL ANTHONY SMITH, MEMBER OF THE LAND COURT OF QUEENSLAND

Third Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON TUESDAY, 6 OCTOBER 2020, AT 10.00 AM

Copyright in the High Court of Australia

____________________

KIEFEL CJ:   The record will note that Justices Bell, Gageler and I are sitting in Canberra, and that Justices Keane and Edelman are physically present in Brisbane. 

I will announce the appearances of the parties for the record to avoid as much interaction at the lectern as possible. 

For the appellants, MR J.K. KIRK, SC with MR O.R. JONES and MR C.J. McGRATH appear.  (instructed by the Environmental Defenders Office)

For New Acland Coal, the first respondent, MR D.R. GORE, QC, MR D.G. CLOTHIER, QC and MR N. ANDREATIDIS, QC appear.  (instructed by Clayton Utz)  There are submitting appearances for the second and third respondents.

Yes, Mr Kirk.

MR KIRK:   May it please the Court.  Your Honours will appreciate that the central issue in this case is whether the orders sought by New Acland Coal, which is the first respondent, but I might refer to it as the respondent – the orders sought in its cross‑appeal from the decision of Justice Bowskill of the Queensland Supreme Court should be made.  An oddity of this case is that the respondent is furiously arguing that there is no proper basis to make the orders that it itself sought after it elected to continue with its cross‑appeal, despite the clear warning from the Court of Appeal of the likely effects of doing so.

Before I deal with the core arguments that arise in the case, it is necessary to give the Court an overview of the rather complex path which has led us to where we are today.

KIEFEL CJ:   Some unusual decisions made or not made.

MR KIRK:   Indeed, and it is a somewhat tortuous path.  Can I indicate the broad structure of my oral submissions?  I will deal first with the legislative and factual context and that will take a little while - I will try not to get too bogged but there is quite a bit of material to get through.  Then, I will turn to the Court of Appeal’s reasons for declining to make the orders sought in the cross‑appeal and obviously seek to grapple with those reasons, then deal fairly briefly at the end with what we say is the invalidity of the related decisions and very, very briefly with the cost issue.

So, can I start with the context.  By way of very brief outline, your Honours would appreciate that the first respondent wishes to expand its open‑cut coal mine near Oakey in the eastern Darling Downs in Queensland.  The circumstances are explained in our written submissions and there is quite a useful summary, with respect, in the first Court of Appeal judgment – I will just give your Honours the reference, core appeal book 2, pages 755 to 758, at paragraphs 1 to 19. 

In order to get approval for the expansion of the coal mines - Stage 3 it was called - it needed to have two types of permissions for which it applied.  First, it needed mining lease applications granted to the Mineral Resources Act1989 (Qld) which I might call the MRA and, secondly, it needed to apply to amend its existing environmental authority pursuant to the Environmental Protection Act1994 (Qld), which I might call the EPA. My client represents a local group in the Oakey region who objected to the proposed expansion.

As I will seek to explain in a moment when I come to the legislation, by brief overview, when there are objections such as those made by my client and many other persons, those two Acts, the MRA and the EPA confer jurisdiction upon the Queensland Land Court to determine disputes that might arise concerning such matters and to make recommendations to the relevant decision‑makers about whether the application should be approved.

Can I give your Honours an overview of the legislative scheme and try not to get bogged in detail, starting with the Mineral Resources Act?  It is in the joint book of authorities, volume 1, Part A, starting relevantly at page 184 of the relevant book.  The objectives of the Act are set out in section 2.  I do not need to dwell on that.  Both of these schemes are fairly much of the usual kind for this sort of application.  If your Honours jump to page 201, using the numbers at the top right-hand side, you will see a heading down the bottom “Chapter 6 Mining leases”, section 232:

(1)An eligible person . . . may apply for a mining lease -

Section 234 over the page, that together with section 271A is the power of the Minister for Mineral Resources to grant the application.  If your Honours then jump to page 213, as is usual for these sorts of schemes, there is a notification requirement – that is section 252A.  There has to be notification to people called “effective persons” and there has to be a notice published in an approved newspaper.  This is just by way of background. 

Then if your Honours jump to page 217, section 260, there is provision for people to make objections to the application for grant of the mining lease.  It has to be done in the approved form.  See subsection (1) and subsection (3) set out the grounds of objection and the facts and circumstances relied on by the objector.

If your Honours then turn the page, section 265 is an important provision. There are two variants. The first variant is subsection (1) and subsection (2). The second variant is subsections (4) and (5). I think strictly we are in (4) and (5) territory here, but it does not greatly matter. Subsections (1) and (2) provide that where there have been properly made objections and there is also an application relating to an application under the EPA, and assuming the objections are properly made, it has to be referred off to the Land Court – see subsection (2):

The chief executive must refer the following to the Land Court for hearing –

(a)the application for the mining lease;

(b)all properly made objections . . . 

(c)all objection notices -

Subsections (4) and (5) are where it does not directly involve the EPA.  It seems that we went under these provisions here because it was a separate referral under the EP Act, but nothing turns on that here.  Subsection (4) is where there is “a properly made objection” and the application:

does not relate to an application under the Environmental Protection Act –

and then subsection (5):

the chief executive must refer the application . . . and all properly made objections . . . to the Land Court for hearing.

If your Honours then turn the page to section 268 on page 221, subsection (1) in essence directs that:

the Land Court shall hear the application and objections thereto and all other matters that pursuant to this part are to be heard ‑

et cetera.  Subsection (2), in summary, it is:

not be bound by any rule or practice as to evidence.

and shall:

inform itself in such manner as it considers appropriate ‑

So, in this regard it is acting a bit more like an administrative tribunal, although it is a court, and I will come to the Land Court Act shortly, but as I will show by reference to the Land Court Act, it is still at all times acting as a court even though it is more of an administrative function, and there is no hint of a suggestion anywhere in this scheme that the principles of natural justice and procedural fairness do not apply. 

If your Honours turn over the page to 222, section 269 the Land Court upon hearing has to forward to the Minister any objections and its recommendation, and subsection (2) indicates that the recommendations must consist of, unsurprisingly: 

a recommendation to the Minister that the application be granted or rejected in whole or in part ‑

and subparagraph (b) relates to a particular issue which does not concern us here.  Subsection (3), by way of background, the recommendation can include conditions that are suggested.  Section 269(4) sets out mandatory relevant considerations for the Land Court.  There is a long list of them, again not terribly surprising. 

If your Honours turn the page to 224, I will just draw attention to a few of them.  They basically relate to the nature and effects of the proposed application for a mining lease and matters relevant to the applicant.  So, for example, (f) relates to “financial and technical” capacity of the applicant:

(g)the past performance of the applicant . . . 

(j)       there will be any adverse environmental impact . . . 

(k)      the public right and interest will be prejudiced; and

(l)       any good reason . . . 

(m) . . . the proposed mining operation is an appropriate land use.

What those mandatory considerations illustrate is that by referring it to the Land Court it is seeking to take advantage of the fact that the Land Court is a specialised Tribunal dealing with these types of issues and is seeking an independent and impartial assessment of that range of matters.

KIEFEL CJ:   Mr Kirk, does the Mineral Resources Act provide that the Land Court is constituted by one member, for the purpose of a hearing?

MR KIRK:   Not so far as I am aware, your Honour.  I might just have that double‑checked, but not so far as I am aware – and if I have to correct myself, I will come back to that.  Section 271 comes back to the Minister, who is the decision‑maker.  So:

In considering an application for the grant of a mining lease, the Minister must consider–

(a)any Land Court recommendation -

and then the matter is mentioned in 269(4) – so that is the list of mandatory relevant considerations for the Land Court.  In other words, it is the same set of considerations reinforcing the point we seek to make, but the reason for having the Land Court is to provide an independent and impartial assessment of the very factors that the Minister must take into account.  Section 271A is the power linking back to the earlier provision to grant, reject the mining lease, or to refer the matter back to the Land Court for a further hearing.

If I could then jump to the EPA, so that is back at the beginning of this volume, starting at page 7, “Object” at page 8.  Not all the conceivably relevant provisions have been provided here, but I will just refer to a few.  If your Honours jump to page 16 at the top, there is a heading “Subdivision 4 Environmentally relevant activities”.  Your Honours will see that, pursuant to subsection 18(b), a “resource activity” as defined in section 107 is an environmentally relevant activity.  It is not in the bundle but section 7 picks up section 110 which relates to mining activity, so there is no doubt that is how this Act comes into play. 

The ultimate foundation of this scheme is section 426, which is that it is an offence to carry on an environmentally relevant activity unless you hold an environmental authority for that activity.  So what the respondent needed was actually either a new environmental authority or an amendment, which is what it sought, to its existing environmental authority to cover the new Stage 3 works.

If your Honours then just jump to page 19, there is a heading “Part 5” – this is within Chapter 5 now – “Decision stage.”  Again, by way of background, Chapter 5, Part 7, deals with amendments to existing environmental authorities.  Here there was an application to amend.  Section 232(1) provides that for a “major amendment” “parts 3 to 5” of Chapter 5 apply.  This was a major amendment.  It is discussed by Member Smith, without going to it, at core appeal book 1, pages 46 to 49, and thus Part 5 of Chapter 5 applied to this application.  It is headed “Decision stage”.  It deals with the decision‑making process.

If your Honours then jump to page 21, section 170, “Deciding standard application”, it refers in subsection (2) to the administering authority, relevantly taking account of the dictionary definition of “administering authority” which is, for matters other than a particular type, the chief executive.  The administering authority here was the Chief Executive of the Department of Environment and Science, who is the second respondent in this case.

In essence, this provision indicates that the Chief Executive must make a decision, subject to the provisions that follow sections 171 to 179, slightly oddly structured provisions or sections in that the Chief Executive has to make a decision but then if there are objections it is referred off to the Land Court for the Land Court to give a recommendation and then it comes back to the Chief Executive again.  So, in effect, it is a prima facie decision, you might say.  At least that is so for the type of issue at play here.  It may be different for other issues. 

To make that good, if your Honours jump to page 25, Division 3 within Chapter 5 is headed “Applications for mining activities relating to a mining lease”.  Section 180:

This division applies for an application for a mining activity relating to a mining lease.

Section 181 is a notice provision that the administering authority, the Chief Executive, must give notice of his/her decision.  Over the page, subsection (2):

The notice must‑‑

(a)state the decision and the reasons for the decision; and . . . 

(i)be accompanied by a draft environmental authority -

and then we come to the slight oddity, section 182:

A submitter –

So that is someone who has previously made a submission, may apply to the administering authority, and subsection (2):

request that its submission be taken to be an objection to the application.

There are certain formalities which apply.  Then, one goes to Subdivision 3 on page 27, section184:

This subdivision applies to an application for a mining activity relating to a mining lease if‑‑

(a)       an objection notice . . . under section 182(2); or

indeed, the applicant itself has requested that the matter go to the Land Court.  Section 185(1):

The administering authority must refer the application to the Land Court for a decision under this subdivision (the objections decision), unless the application is referred to the Land Court under the Mineral Resources Act, section 265.

Here it seems to have been treated that there was a referral under this provision, so there were two referrals.  Section 185(4) over the page:

The referral starts a proceeding before the Land Court for it to make the objections decision.

Section 186 deals with the parties.  If your Honours then jump to 190 at the bottom of page 29:

The objections decision for the application must be a recommendation to the administering authority that‑‑

(a)if a draft environmental authority was given for the application‑‑

it be approved on conditions or it be refused.  So, again, a fairly standard type of provision.  Section 191, there is a different sort of list of mandatory relevant considerations here compared to the MRA.  It is more open textured, you might say.  But, for example, the Land Court must consider‑‑

(e)any objection notice for the application;

(f)any relevant regulatory requirement -

In 192:

The Land Court must, as soon as practicable after the objections decision is made, give a copy of the decision to‑‑

(a)the MRA Minister –

and also in certain circumstances to another Minister, the State Development Minister.  Section 193 then provides that if those two Ministers – if and when those two Ministers are given copies, subsection (2), they must advise the administering authority about any matter they consider may help the administering authority to make a decision, so, it is a further governmental consultation.  Over the page, at page 32 section 194 “Final decision on application”:

(1)      This section applies if—

(a)the administering authority referred the application to the Land Court under section 185 and an objections decision is made –

So, one then goes to subsection (2):

The administering authority ­

So the Chief Executive here or the delegate must decide again that the application be approved, be approved on conditions or be refused.  If one then jumps to subsection (4), the mandatory relevant considerations for the administering authority are to have regard to the objections decision of the Land Court, any advice of the two Ministers and the draft EA if one was given.  So, again, this scheme provides for a detailed consideration by the independent and impartial Land Court to inform the decision of the administering authority. 

Next, if I can take your Honours to the Land Court Act, that commences at page 110 of this volume but, relevantly, at page 116.  Section 4:

(1)A specialised judicial tribunal called the Land Court is established.

(2)The court is a court of record -

but not a superior court of record.  Section 5:

(1)The Land Court has the jurisdiction given to it under this Act or another Act.

Section 6:

(1)The distinction between the Land Court and chambers is abolished.

(2)The business of the court, wherever it is conducted, is taken to be conducted in court.

So that ties back to the submission I made earlier that it is always sitting as a court.  If your Honours then turn the page, section 7 on page 118, the fairly usual sort of provision that these sorts of courts or tribunals:

(a)is not bound by the rules of evidence . . . 

(b)must act according to equity, good conscience and the substantial merits of the case –

I note in passing that my learned friends in their written submissions refer to 7B as importing a requirement of procedural fairness.  Now, it may be imported there, no doubt it is imported in lots of places, but that at least would reinforce it.  Again, no hint of a suggestion that there is no such requirement.  Section 7A, the Land Court has the powers of the Supreme Court to “grant any relief or remedy” or “make any order” –

give effect to every ground of defence or matter of set-off, whether equitable or legal.

So that is its grant of powers within jurisdiction.  Section 7B, just in passing:

An order of the Land Court may be made an order of the Supreme Court –

by filing that order in the Supreme Court.  Over the page, again by way of background, section 9, the Land Court has power to punish for contempt – see subsection (2).  In sum, it can be seen it is a court, and it has very significant powers as such, including the traditional sort of defining feature of power to punish for contempt.  If your Honours then jump to section 35, which is on page 136, headed “Privileges, protection and immunity”:

A member presiding over a proceeding in the Land Court, or exercising another judicial power, has the same privileges –

et cetera, as they would if they were a Supreme Court judge.  In subsection (2), so too for lawyers.  Subsection (3) is actually the relevant one here:

If an administrative function is conferred on the Land Court, a member or judicial registrar, each of the following persons has the same privileges, protection and immunity –

as they would if it were in the Supreme Court.  So the member, a lawyer or a witness.  That notion of administrative function is defined in the dictionary, which is at page 166.  It is the very first definition:

administrative function means an administrative function or power conferred under an Act.

Then it gives us examples, the very two examples which are at issue here.  In my computer search of the relevant version of the Act, the only other reference to “administrative function” at the relevant time was in section 21, which relates to rules of court, and does not tell us very much – and also in section 96, which is a transitional provision.  So it really only has work to do in section 21 about rules, and section 35 about immunities.

Now, if your Honours can go back to page 122, section 14, which is the answer to your Honour the Chief Justice’s question, I think.  Whilst I am there, I should note, for completeness, section 16 is the provision about who may be appointed to the Land Court, subsection (4), lawyers, local lawyers, and alternatively:

(b)a valuer, or a person professionally qualified in another land‑related discipline, with extensive litigation or quasi‑judicial experience. 

Your Honours, there seems a bit of feedback when I tap, so I will try not to tap.  That is the key legislative provisions.  Then can I turn to the series of decisions which constitutes the fairly torturous path to being in this Court today.  The best way to do it is essentially in chronological order.

The objections to the respondents’ applications under the Mineral Resources Act and the Environmental Protection Act were first considered by Member Smith of the Land Court.  It was a very long hearing on 31 May 2017.  Member Smith handed down his decision which occupies the whole of core appeal book volume 1.  I do not think your Honours need to read that, but can I note that at pages 14 to 15 there is a useful summary of his findings, right at the beginning of his decision. 

On most of the issues raised in the hearing, Member Smith found in favour of the respondent and against what was put by my client and other objectors – there were other objectors who appeared too.  That that was so was acknowledged by President Kingham in her main judgment to which I will come to shortly.  However, Member Smith recommended that each of the three applications be refused.  That was so because of concerns relating to, first, excessive noise, second, a risk of harm to groundwater – I am speaking very broadly here – and third, related to that, a concern about intergenerational equity in relation to ongoing effects on groundwater.  So that is decision one 

Next, on the basis of those recommendations, on 14 February, Valentine’s Day 2018, a delegate of the second respondent, the Chief Executive of the Department of Environment and Science, in effect accepted the recommendation of refusal and declined to approve the variation to the environmental authority sought by the respondent.  So, that was the one under the EP Act.  I should note there has never yet been any decision under the Mineral Resources Act, neither back then, nor since, nor today.

The respondent then sought judicial review of Member Smith’s recommendation in the Supreme Court.  Her Honour Justice Bowskill of the Queensland Supreme Court gave judgment in May 2018.  It commences, without going to it, at core appeal book 2, page 558.  Her Honour determined that Member Smith had erred in certain respects, in particular that on the proper construction of the legislative scheme the issue of interfering with groundwater was not within the jurisdiction of the Land Court to consider, and thus not a proper basis for refusal.  I will just give your Honour some references – see paragraphs [226] to [228] commencing at page 639.

In the alternative to that ground, though not necessary to consider, that Member Smith had not given adequate reasons with respect to the groundwater issues ‑ see page 647, paragraphs [254] to [255]; that as a consequence of the first finding, the adverse conclusion on intergenerational equity also could not stand ‑ see page 647, paragraphs [257] to [274]; and as regarded the noise issues that Member Smith erred not in concluding that there were adverse noise effects, but in concluding that he was bound to refuse to recommend approval in that circumstance, as opposed, for example, to potentially suggesting a condition.  So he had misdirected himself.

Justice Bowskill also held, however, that Member Smith’s decision was not relevantly affected by apprehended bias, as has been argued by the respondent, on the basis that whilst the conduct of one particular day of the hearing, 2 February 2017, did raise a reasonable apprehension, there had been a waiver of rights by NAC to complain and the reasons for decision of Member Smith, in her Honour’s view, did not revive the reasonable apprehension – again I will give a reference, see page 623, paragraphs [182] to [188] of the conclusion.  It is not necessary here to focus on the details of that decision.

There was then a further hearing before her Honour Justice Bowskill as to what orders should be made in light of the findings her Honour had reached.  That second judgment by her Honour commences at core appeal book 2, page 709.  As a consequence of her decision on groundwater, her Honour set aside Member Smith’s recommendation and remitted the matter to the Land Court for further determination within certain defined parameters, to which I will come in a second.

Her Honour also set aside the decision of the delegate of the second respondent, approving the environmental authority under the EP Act because that had been based on Member Smith’s recommendation.  So, the respondents thought that, well, you are overturning Member Smith.  The decision that flowed from it by the delegate under the EPA needs to be overturned too, and that was done. 

It is important to understand, in our respectful submission, the orders Justice Bowskill made and the reasons for them.  Can I take your Honours first to the reasons – core appeal book 2, relevantly at page 713, using the numbers at the top.  By way of background, at paragraphs [6] to [9], that deals with the point I just made – namely, overturning the decision of the delegate, so I just note that.

If your Honours then turn to page 723, this is the end of a discussion about section 30 of the Judicial Review Act (Qld), the equivalent of section 16 of the AD(JR) Act.  That section, by the way – your Honours will be familiar with it – is found at page 714 at paragraph [11].  It gives a discretion to the Court as to what orders it makes if it finds some relevant error established.

It was argued for by the respondent and accepted by her Honour that there should be a confining order as to what was to be reconsidered.  In paragraph [35], the last four and a half lines, her Honour said:

There were three issues which lead the first respondent –

so that is Member Smith:

to recommend refusal of the mining lease applications and application to amend the environmental authority ‑

It identifies those three and then her Honour says, jumping to the second line of paragraph [36]:

The conclusions I reached in relation to the grounds of review relating to noise, groundwater and, relatedly, intergenerational equity, are discrete, and do not affect, or infect, the findings in relation to the other issues dealt with by the first respondent.  The position would be different had I found the apprehended bias ground was established, as such a finding would infect the whole of the Land Court’s decision.  In those circumstances, I do not consider that it is in the interests of justice . . . for the matter the subject of the Land Court’s decision . . . in a manner which would leave open the re‑litigation of any of the issues which were untouched by the judicial review proceeding.

That was driven home in the last sentence at paragraph [37]:

It would be entirely inimical to the interests of justice to permit the parties to avoid the binding effect of the findings and conclusions already reached by the Land Court, after a full hearing, which are not tainted in any way by the outcome of this judicial review proceeding.

Your Honours will obviously appreciate the premise of that reasoning is now gone, because the Court of Appeal overturned her Honour on bias and found that the reasons of Member Smith did manifest bias, and thus, the whole of the Land Court’s decision by Member Smith is infected and is tainted, to use the words of Justice Bowskill.

KIEFEL CJ:   So, Mr Kirk, no question could arise here in relation to whether or not the procedure by which Justice Bowskill remitted the matter was open to her Honour?

MR KIRK: No, it is not disputed that that was within power within section 30 for her Honour to do – we are not disputing that. But the basis on which his Honour did it is very lucidly expressed in that analysis, and the premise was as I have said. It could not be clearer, in our respectful submission.

The actual orders, if I can show those to your Honours, they start at page 728.  So order 2, at the bottom of page 728, was to set aside the recommendation decision, because your Honours will recall Member smith had actually recommended refusal based on those three factors.  Order 3 was the overturning of the delegate’s decision.  Order 4, referral back to the Land Court to a different member, “in accordance with the following orders”.  Order 5 is critical.  Your Honours will see it refers to:

on the basis of, the findings and conclusions –

So not even just “findings”, it is:

findings and conclusions reached by –

Member Smith and set out in his reasons – other than those three issues.  And order 6 excludes groundwater and intergenerational equity, because her Honour found that was not within the jurisdiction of the court.  And order 7, even as regards noise, the other issue, your Honours will note:

(a)The parties before the Land Court are bound by the factual findings –

not by the conclusion, but the findings made by Member Smith “in relation to noise”.

GAGELER J:   What was the source of power to make that part of the order?

MR KIRK: Well, if any, it was going to be section 30.

GAGELER J:   Where?  What bit?

MR KIRK: And it was not put to the Court of Appeal below that it was not within the power for those orders to be made. That is as high as I can take it. But, obviously, an argument might be open that it was not within power to make such directed findings within section 30 but, to be fair, that would be a significant new argument, and it was not put below.

GAGELER J: Well, at some stage, Mr Kirk, we have to come to the effect of the order that was made under section 30.

MR KIRK:   Yes.  There is one other key point to make about this, and I will come back to this when I get to the argument, after getting through all these decisions.  These are the orders under appeal.  These are the orders we are seeking to overturn.

BELL J:   They were the orders under the cross‑appeal?

MR KIRK:   Correct, exactly.  So, to foreshadow one of my key points, a great deal of ink has been spent about how somehow these orders are said to elevate or protect or give superior court a status to the subsequent decision of President Kingham.  That is incorrect for reasons we will go into but even if it were correct, these are the orders under appeal raised by the cross‑appeal as your Honour Justice Bell put to me.

BELL J:   In the cross‑appeal, New Acland sought to have the matter remitted to the Land Court?

MR KIRK:   Correct, and I will take your Honour to the cross‑appeal momentarily.  Just whilst we are here, can I note order 9 - I am not going to say a lot about costs - but order 9, Justice Bowskill ordered that each party bear its own costs of the proceeding for reasons her Honour gave in the judgment.  The sum of those orders was that it was a very limited rehearing provided for back in the Land Court reconsidering the conclusions about noise and any new issues which were raised, although given that there had been a 100‑day hearing, the likelihood of there being new issues was not very high. 

What next occurred is that, and the chronology here is important, the appellant, my client, appealed to the Court of Appeal on the issues which it had lost on, groundwater, intergenerational equity and noise.  The respondent, NAC, cross‑appealed on the bias issue on which it had lost.  Before the appeal came on for hearing the matter was back before now President Kingham of the Land Court.  My client and other objectors applied for an adjournment pending the appeal and the cross‑appeal being heard.  That was refused on 20 June 2018.  Without going to it, the judgment commences core appeal book 2, page 474. 

A significant part of her Honour’s reasoning in refusing the adjournment was noting that the scope of the remitted hearing was greatly restricted in light of the orders of Justice Bowskill, without going to it, note paragraphs 3 and 43.  The hearing before President Kingham thus proceeded.  It was just for three days in October 2018.

KIEFEL CJ:    No application was brought before the Court of Appeal to stay the proceedings.

MR KIRK:   No, correct, there was no application for a stay.  In November 2018, after that further hearing, President Kingham made a recommendation on the remittal that the three applications, two under the MRA and one under the EPA will be approved subject to compliance with a new condition relating to noise.

KIEFEL CJ:   Are they strictly conditional recommendations in the sense that the Coordinator‑General has the power – only has the power?

MR KIRK:   Exactly so, your Honour, exactly.  In conducting the remitted hearing and as was foreshadowed in the adjournment decision, President Kingham correctly understood her task as being a very limited one in light of Justice Bowskill’s orders and can I just illustrate that to your Honours by going to her main judgment.  So it is core appeal book 2, page 541 at the top.

There is a heading above paragraph [222], “What recommendations should I make?”, the subheading, “The balancing exercise”, and her Honour said:

Because of the nature of this remitted hearing, and the orders that govern the process, the exercise of deciding what recommendations to make is both unusual and artificial.

Her Honour then explains why that is so, because she is bound by Member Smith’s findings and conclusions.  Then if your Honours turn the page to page 542, paragraph [225], I alluded to earlier the fact that most issues before Member Smith were decided adversely to the objectors.  At [225] her Honour notes that:

On some issues and criteria, his Honour’s conclusions favour the applications.

He explained that some – he found the issue was not adverse to NAC or it could be managed, or it was otherwise not important enough.  At [226] her Honour summarises all the issues that have been put in play – a vast array as your Honours can see.  Those are the ones on which we lost, in effect, and then the conclusions on those issues, and then [227]:

On other issues and criteria, Smith M made findings that do not favour the applications, but said his concerns could be addressed by amended or additional conditions.

So there is reference to some of those.  In [228]:

On other issues . . . Smith M made findings adverse to NAC, he expressly concluded he would not recommend refusing the applications.

“Community and social environment” and “past performance”, for example, and then [229]:

There are some statutory criteria on which Smith M has made no binding findings or conclusions because –

of what he had done in relation to groundwater and noise.  Then if your Honours jump over the page to paragraph [232] on page 544, starting in the last four lines:

Some objectors, including –

the appellant –

argued I should take a different view to Member Smith on certain statutory criteria -

In [233]:

In principle, I accept that is so.  In practice, though, I see little scope for making an unfavourable recommendation on any issue other than the noise impacts . . . because most of Smith M’s conclusions favour approval. 

I have already explained (at [28 to [46]) why I think it is both unnecessary and inappropriate to engage in a balancing exercise and draw a conclusion on each key issue or statutory criterion.

NAC had argued that you sort of go through each one and say yes or no.  Her Honour took the view that you should stand back and weigh it all up at the end.  But her Honour goes on:

Nevertheless, this is what Smith M did.

That sort of tick‑a‑box exercise. 

That necessarily constrains my discretion in weighing up his findings:  significantly so. 

But for Smith M’s individual conclusions on each issue, I would have weighed his positive and adverse findings in the balance, in a more comprehensive and holistic way. 

Then he explains and gives an example of past performance. So, to pick up the words in paragraph [234], her Honour regarded her discretion as being constrained significantly by the issues. Now, to come back to the question your Honour Justice Gageler was asking me, there is obviously, in retrospect, room to argue about whether the orders were within the scope of section 30 of the Judicial Review Act.  But we, reflecting the way it has been put below, put the case more simply. 

As an issue of fact, it is palpably clear that President Kingham’s decision was substantially bounded by, or perhaps more accurately, founded upon the findings and the conclusions of Member Smith; the premise of Justice Bowskill being they are not tainted by bias, that premise now having gone.

What next occurred, of course, was the hearing of the appeal and cross‑appeal.  Just to deal, sorry to bother you with an email, but it was discussed in the submissions.  If I could take your Honours briefly to the respondent’s further materials, the thinner – for me at least it is in white – thinner white book at page 6, using the small numbers in the top in the centre - this is an email sent by my predecessor with consent.

KIEFEL CJ:   I am sorry, what page was that, then?

MR KIRK:   Sorry, your Honour, page 6 of the respondent’s further material.

KIEFEL CJ:   Thank you.

MR KIRK:   It is an email sent by my predecessor with consent to the Court of Appeal registrar.  So the significance of this is that - I think it is the day before the appeal - this email draws to the court’s attention President Kingham’s decision.  So your Honours will see, second paragraph:

For reasons summarised below, the active parties have reached agreement that it is unnecessary to argue the grounds in the Notice of Appeal . . . which relate to noise –

and also in the cross-appeal.  That is then explained, the paragraph beginning:

On 7 November –

and then at the bottom:

I request that you bring this email to the attention of –

the three members of the court sitting.  Thus, when the hearing was called on, all parties knew and the Court of Appeal knew of President Kingham’s decision, her unconditional recommendation, as your Honour the Chief Justice correctly noted, and that the noise issue had thus fallen away, because NAC decided it could live with that noise issue.  So that is part of the background.

Now, as I said to your Honour Justice Bell, it is important to take account of the cross‑appeal.  So the actual notice commences at page 745.  Through an act of supererogation, the respondent had put on a notice of contention, which is in the preceding few pages, and a notice of cross‑appeal in the same terms.  This is the notice of cross‑appeal.  It is just necessary to note first paragraphs 2 and 3.  Paragraph 2 is the attempted conditionality:

In the event that the appellant’s grounds of appeal are upheld and the first respondent’s notice of contention is dismissed –

then NAC relies on what follows and 3 raises the bias ground – it is not necessary to get involved in the details, but it raised the bias ground.  Then if your Honours jump to page 750, at the bottom of the page, “Orders Sought”:

1.The cross appeal is allowed.

2.Orders 4 to 9 of the orders made by the Supreme Court . . . are set aside –

This is what we call the remittal orders – and in lieu thereof, as your Honour Justice Bell foreshadowed, order that:

The matters to which the Recommendations Decisions relate are referred back to the Land Court to be considered by a different member of the Land Court –

and then something about costs.  So these are the orders that NAC sought in the cross ‑appeal and now furiously says cannot or should not be made and those orders were sought in full knowledge of President Kingham’s decision.

KIEFEL CJ:   Well, of course, your client said they should not be made either.

MR KIRK:   That is true.  The world has turned.

KIEFEL CJ:   So, how does your client then have a right to appeal in relation to something which was not sought below?

MR KIRK:   Because, as I am about to show your Honours, there was a significant exchange in the hearing before the Court of Appeal and that is ultimately relevant to discretion, which is why I am going to show it to your Honours.  It is not just sport; it is actually legally relevant for the discretion.  In the course of those submissions, in effect the court was suggesting to NAC that it had to make an election.  The court reserved its decision on that and we will come to ‑ ‑ ‑

KIEFEL CJ:   An election concerning the right?

MR KIRK:   The conditionality.

KIEFEL CJ:   The right to appeal?  That is what the election was concerned with that the President was discussing?

MR KIRK:   Yes, whether to pursue the cross-appeal because, as I will show your Honours in just a second, the effects are obliterating and my client said well, if it is going to be done, they have to be put to the election and it must accept the consequences.  So that is the ultimate answer to your Honour’s query of me.

Yes, to be absolutely clear, we sought to resist below the finding that Member Smith’s decision was infected by bias, but we did say but if it is, it is back to square one, as indeed the President put.  Can I show your Honours that transcript?  It is in the book of applicant’s further materials – that is, for me at least, the thicker white one.  As I said, this is ultimately relevant because my friends raise a discretionary argument, as we apprehend it.

If your Honours turn to page 30 – the number is at the top – of the appellant’s further materials.  I want to draw to attention some key passages.  President Sofronoff, starting at page 31, line 35, and your Honours will recall that there was a notice of contention in identical terms to the notice of cross‑appeal, which of course did not really make sense and the President pointed that out.  At line 35:

Your notice of contention says you want to – the decision . . . affirmed . . . Well, that’s what a notice of contention is.  But your first ground is the bias point . . . if we uphold the bias point, that would not result in an affirmation of her Honour’s reasons, would it – her Honour’s decision, would it?

My learned friend Mr Gore said, yes:

that’s correct, your Honour.

Then if your Honours turn the page, at line 25 on page 32, the President said:

you can’t have a notice of appeal that is contingent -

Then jumping to about line 38, on the transcript lines, the last statement by the President:

but a notice of appeal . . . is an attack upon an order.  And, rightly, you would attack the order on the grounds of bias because if you’re right about that the whole of the Land Court’s order should have been set aside.  There’s no question of referring anything back to the Land Court.  Not a single decision he made in your favour against you is valid.

My friend:

Correct.

That is reiterated by the President on the next page, about line 6:

The second matter is that if you want us to look at apprehended bias as part of the cross‑appeal, not contingently but as part of the cross‑appeal, it’s probably right – I might be wrong about this, but it’s probably right that we would have to look at that as the first issue. 

Again, reiterates if you get up on that the orders made by the Land Court should all have been set:

her Honour’s orders should all be set aside, because she found against you on bias, and all of the orders of the Land Court should be set aside as well.  And back you go.  Start again. 

My learned friend at transcript line 24:

Yes.  The substance of the points your Honour makes is correct.

My friend goes on to explain why in terms we adopt at line 38:

The key, we would submit, your Honour, is what’s best in the interests of justice and in the administration of justice.

Then, if your Honours jump to page 35 his Honour with some colour at line 4:

And at that hearing it was common ground that the –

Sorry, that is my learned friend, I should say:

bias point should be determined first.

Then, the President said:

It had to be, because it’s nuclear in its effect.

That is to say, obliterating of everything.  My learned friend:

Correct.

Over the page, page 36, the President again, transcript line 4:

I don’t know that I would be comfortable continuing with the hearing with the notice of contention and notice of cross‑appeal in their current form.  Notice of contention’s not a problem . . . But we can’t overlook the notice of cross‑appeal unless you want to maintain its contingent nature.  Then we have to decide whether it’s competent or not.

Then, if your Honours jump to transcript line 19, my learned friend asked for the matter to be stood down, plainly so he could get instructions in light of your Honour’s indications and then at page 38, it was indeed stood down for 42 minutes.  My learned friend Mr Gore then handed over to Mr Clothier who was apparently more on top of the bias issues.  Mr Clothier’s submission was to say, look, we can make it conditional but if your Honours then jump to page 48, transcript line 15.  So lots of submissions that it could be conditional:

we ask that your Honours rule on it, and if your Honours rule that we can’t do both, then the election we make is in favour of running the bias point unconditionally.

Then, just for completeness, page 53, right at the bottom, my learned friend said:

So that if the ruling was that an alternative or conditional bias point cannot be run, then paragraph 2 would indeed be in comity.

I am not quite sure what was actually said, but what that really means clearly is that paragraph 2 of the notice of cross‑appeal which was the conditionality has to be dumped.  That is made clear over the page, the President said:

Then you would seek leave to amend that paragraph.

MR CLOTHIER:  I would seek that your Honour simply strike that paragraph out, leaving the rest of the notice of appeal –

To then summarise what happened, there was a little debate about whether the court should determine right at the beginning whether or not conditionality was permitted and they reserved on that.  If your Honours jump to page 62, line 40, the President said:

we’ll reserve our decision on your – on the question of the validity of the – your cross – notice of cross‑appeal -

and go on to hear all the arguments.

The relevance of those exchanges, in our respectful submission, is that, as I noted, in this Court the respondent seeks to resist the orders that it sought being made based on, amongst other things, an exercise of discretion.  If there is any such discretion available that material is highly relevant to that issue. 

The respondent was fully informed of and understood the consequences of proceeding with its cross‑appeal.  It sought time to confirm its instructions.  It made a deliberate and unconscious decision to pursue the point.  It did so in full cognisance of the recommendation decisions of President Kingham.  Presumably, it did so because it perceived some strategic advantage for doing so.  In that context it lies ill in the mouth of the respondent to claim that because of that decision the usual consequences of a finding of judicial bias should not follow.

The next step is that the Court of Appeal handed down its decision on 10 September 2019.  In summary, it upheld the cross‑appeal on bias.  It overturned Justice Bowskill on the waiver issue and, secondarily, it rejected the appellant’s appeal – my client’s appeal – on the groundwater and intergenerational equity issues, too.

To take your Honours briefly to that judgment, it is in core appeal book 2.  It starts at page 753, but can I jump to page 758.  First paragraph [20].  This is the decision of his Honour President Sofronoff, with whom the other two members of the court agreed.  Under the heading “Apprehended Bias”, his Honour said – and I do not understand anyone disputed this below:

As a court of record, and notwithstanding that it is an inferior court, the Land Court must have and must maintain the characteristics of an Australian Court.  The most fundamental of these characteristics are independence and impartiality.  It follows that there will be occasions when a judge will be disqualified from hearing a case.

Then, if your Honours jump to page 772 the President comes to deal with this conditionality point.  At paragraph [55] his Honour quotes the relevant paragraphs of the cross‑appeal.  Just to draw a few points to attention, at page 773, paragraph [57], his Honour said:

Allegations of bias, whether actual or ostensible, constitute a challenge to the validity of a judicial decision.  Such allegations involve an assertion that the administration of justice has failed. 

We respectfully adopt that.  At paragraph [59] his Honour rejected the argument that it could be put conditionally – that is to say, that the bias argument or ground in the cross‑appeal could be put conditionally – i.e. held in reserve and only if they lose on the other points decided.  Over the page, at paragraph [60] his Honour said:

This conclusion can be explained simply on the basis of the principles concerning election between inconsistent rights.

So the inconsistency there is between, on the one hand saying Justice Bowskill’s orders should be upheld because she was right about groundwater, et cetera, and on the other hand saying they should be set aside because she was wrong about bias.  There is an inconsistency.  Someone perceived the need for election.  Then, secondly:

there is, in addition, a reason for this conclusion having to do with the due administration of justice.

There is then a reference to Concrete Pty Ltd v Parramatta Design, which I will come to shortly.  And, then, paragraph [62]:

If a party is not permitted to postpone until after judgment an application that a judge disqualify himself or herself –

et cetera, and then a reference to what Mr Clothier had submitted.  All of those principles, with great respect, we say are correct and should not have been departed from.  If your Honours then jump to page 785 briefly, there is a heading above paragraph [104], “Groundwater”.  Can I draw attention to paragraph [104], the last two sentences:

The appellant’s first ground of appeal challenges that conclusion –

about groundwater, my client’s challenge about groundwater:

Because the cross-appeal must be allowed, it is strictly unnecessary for this issue to be determined.

But sometimes it is useful to do so.  So if your Honours look at the last four lines of paragraph [105]:

In this case, the result of the cross-appeal means that the case will have to be reheard.  In the long and unhappy circumstances of this case, it is desirable for the Court to decide the point so as to avoid any more litigation than is absolutely necessary.  For that reason, we now turn to consider that issue.

In sum, my client lost on groundwater and intergenerational equity.  Finally, in this judgment if your Honours turn to page 787, paragraph [115] is the conclusion on groundwater.  Then in paragraph [117], Justice Bowskill had set aside the member’s orders and remitted matters back to the Land Court:

Having regard to her Honour’s rejection of the respondent’s case on apprehended bias, her Honour made orders that would have permitted some of the findings of the Member to be maintained when the matter was to be reheard.  That is no longer possible.  Consequently, the orders should be –

essentially the orders sought in the cross-appeal with I think one – in substance they are the same – difference, notably and with much irony, proposed order 1 was that:

Orders 4 to 8 of the orders made by Bowskill J . . . be set aside –

but not order 9, which was the costs order.  So the Court of Appeal in this proposal was actually going to leave there being no order as to costs at first instance, but my client claimed costs on the appeal.  Again for discussion, paragraph [117], we respectfully say, is entirely orthodox and appropriate.

Now, in fact, as your Honours would have gathered from the submissions, when notification was given that judgment was forthcoming, an email was sent by consent to the registrar – again it is in the respondent’s further materials and it is not necessary to go to it – saying could we have the chance to make submissions about the actual orders?  So, although [117] is expressed as though orders were being made, in fact President Sofronoff did not actually make those orders when his Honour handed down the judgment.  They in effect were treated as the orders the court was inclined to make.

Further submissions were then made.  Those written submissions are in, I think, the respondent’s further materials.  It is not necessary for me to go to them, I do not think.  The issue was then determined on the papers and that is what we have called “CA2”, which commences at 789.  It is a short judgment.  If your Honours turn to page 792, it is mainly a recitation of history.  At paragraph [10], there is a reference in the last five lines to the Land Court having heard and determined the remitted matter and the President having made orders in favour of Acland.  Then a reference to the fact – I think I omitted to say this – following President Kingham’s decision, the Chief Executive of the Department – so the second respondent here – again accepted the recommendation of the Land Court.

Your Honours will recall that the first time around when Member Smith said no, the delegate said okay, no, under the EP Act.  When President Kingham said yes, subject to the conditionality, and that conditionality was fulfilled, the delegate said yes, the approval is granted.

KIEFEL CJ:   And that occurred between the hearing in the Court of Appeal and the publication of its reasons and proposed orders?

MR KIRK:   Yes, it was ‑ ‑ ‑ 

KIEFEL CJ:   On 12 March. 

MR KIRK:   Correct.  Thank you, your Honour.  And just for completeness, that is referred to in an affidavit which was provided to the Court of Appeal, which is – your Honours do not need to go to it – it is in the appellant’s further materials.  It is an affidavit of my learned friend’s instructing solicitor which commences at page 65; at page 66, paragraph 5 there is a reference to that decision having been made on that date and the decision is then annexed to the affidavit in those materials. 

In terms of the reasoning, then, there is a reference to what Oakey submitted at paragraph [12], what Acland submitted at paragraph [13], paragraph [14], “Acland’s submission should be accepted”.  Paragraph [15] I will come back to because as I will seek to articulate shortly it shows an inconsistency in the approach of the Court of Appeal, but I will come back to that.  In paragraph [16] it was noted that there had been no application for a stay, and as a result orders 4 to 8 of Justice Bowskill had “been performed”.  And then paragraph [17], which is really the reasoning in full, we have divided up into two reasons, but they overlap a bit.  First:

Those orders having been spent, there would be no utility in setting them aside.

And secondly:

Nor is it open for this court in this appeal to interfere with the orders made by President Kingham . . . Those are valid orders of the Land Court and, subject to being set aside on appeal, they bind the parties.  There has been no such appeal.

And then there is a summary reiterating those two points.

KIEFEL CJ:   Just so far as concerns New Acland’s change of position in relation to its remedies, the order sought attached to its cross‑appeal was an order for remitter.  It is now taking the position that it does not want that.  It wants a bare declaration ‑ ‑ ‑ 

MR KIRK:   Correct. 

KIEFEL CJ:   ‑ ‑ ‑ probably having no real…..Does that amount to some kind of election as to remedy?

MR KIRK:   Well first, with respect, your Honour is entirely correct in the summary that your Honour has just given.  There was a complete change of position, despite the election made.  In a sense, to answer your Honour’s second point, if it was, it was too late because the election had been made ‑ ‑ ‑ 

KIEFEL CJ:   It had been made in relation to the right to pursue the appeal and that resulted in a finding; I suppose that is the question.  Can New Acland, then, control what happens with that finding?  Is it effective for it to – I mean, presumably, it would be estopped if it ever sought to change its position once again, but we are in different territory, we are actually either in whether you can waive a finding or make an election as to remedy which denies the efficacy of the remedy initially sought. 

MR KIRK:   I suppose, in one sense that is the issue in dispute between us; at least that is one way of putting the issue between us.

KIEFEL CJ:   Well, it impacts upon your client, of course, on one view. 

MR KIRK:   Indeed, because – not to mention, as I will seek to develop in a second, the administration of justice because of the findings that have been made.  It could not have been clearer than it was in this case – it will not always be so clear – but here it was pellucidly clear that they fully understood and accepted the consequences of the findings that they sought. 

KIEFEL CJ:   You are saying that they could not therefore seek the declaration and the court should not have given it? 

MR KIRK:   Correct.  And then there is a whole – I mean, in a sense, that foreshadows the whole argument which I am just about to get to.

KIEFEL CJ:   So you are saying they should be held to the initial election with all the consequences in terms of remedy, that they cannot change their position in relation to the remedy?

MR KIRK:   A, they cannot.  B, even if they could, they should not be permitted to, for reasons ‑ ‑ ‑

KIEFEL CJ:   Is that because the election as to the right to pursue the cross‑appeal also encompasses the remedy that they then sought so that their election was as to both?

MR KIRK:   Yes, your Honour.

BELL J:   Is it also because in making the election that they made, they invited the court to make a finding as to whether or not the proceedings before Member Smith were tainted by an apprehension of bias?  At the point of making the election, they could choose not to have the court make that finding but the difficulty is, in having invited the court to make the finding, then choosing to walk away from the consequences of it.

MR KIRK:   Exactly so, with great respect.  And then leaving out there in the ether a finding that the decision of Member Smith was infected by bias, and to then foreshadow a point I will come to, but it is a critical point.  So what the court then did at the application of New Acland was make a declaration that Member Smith failed to observe the requirements of procedural fairness.

Well what, if I can ask rhetorically, is the Minister to do with that?  Because it will be recalled that the Minister for Mineral Resources – that the delegate under the EP Act has made its decision; the Minister still has not.  What is the Minister to do with that, when he/she ‑ I am not sure which ‑ is faced with this decision by President Kingham, which is founded on this very long decision of Member Smith, and he/she is told, by the way, that very long decision which is the foundation of that shorter one is infected by the requirements of procedural fairness, recalling that the recommendation decision is a mandatory relevant consideration, and addressed to the very same set of mandatory relevant considerations that the Minister themselves must consider.

So what is the Minister to make of all that?  And what it also means is that ‑ as I have put in going through the legislative scheme ‑ plainly the purpose of involving the Land Court in this way is to give the Minister and also the Chief Executive the benefit of an independent and impartial assessment of these matters which are often highly controversial, as we all know – this one certainly is. 

So you get an independent person, an independent – a court, no less, a specialist court to advise you on these issues.  It is not judicial power, but it is still a court.  There is no independent and impartial assessment which has been provided to the Minister in light of the circumstances as they have been found.

GAGELER J:   Mr Kirk, is the effect of the declaration in order 3 to create an issue estoppel between Oakey Coal and New Acland that would be applicable in any subsequent direct or collateral challenge, or any further decision that might be made on the basis of that decision?

MR KIRK:   Yes, again, I apologise for cutting across.  Whether that was the intent, it must be the effect.

KIEFEL CJ:   New Acland, on your argument, I take it, Mr Kirk, could not have submitted to an order dismissing their cross‑appeal.  It could not have suggested that as an alternative?

MR KIRK:   Not once the election had been made.

KIEFEL CJ:   Once the finding had been made.

MR KIRK:   Once the finding had been made.  In part, as I will seek to develop, but picking up on what your Honour Justice Bell has put to me, once – choose your metaphor – but once the genie is let out of the bottle and a finding is made that the administration of justice has gone wrong, you cannot just walk away from it, in our respectful submission.  I am about to ‑ ‑ ‑

KIEFEL CJ:   Can the party withdraw their cross‑appeal up to the point when an order is made and the remedy given?

MR KIRK:   Obviously it may depend upon the issue.  In ordinary civil litigation if you want to withdraw your contract or claim at the last minute you can do so but not in this context and then it leads to the concrete case which I am about to come to.  I have finished going through the tortuous path and I am about to start the meat of the argument, is that a convenient time?

KIEFEL CJ:   Yes.  Yes, the Court will take its morning adjournment.  Thank you, Mr Kirk.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

KIEFEL CJ:   Yes, Mr Kirk.

MR KIRK:   It is, in our respectful submission, a longstanding and fundamental principle that a finding of bias, whether actual or ostensible, strikes at the validity and acceptability of a trial and its outcome, and that if there is such a finding then the judgment should be set aside and a new trial ordered, irrespective of the findings on other issues.  Can I take your Honours first, briefly, to Ebner, which is in volume C3, of the joint book of authorities.

EDELMAN J:   Mr Kirk, just before you do, could I just ask you about the submissions you were making five to 10 minutes just before the adjournment.  What is the point to which they are directed?  You are not submitting, are you, that the respondent has effectively waived its ability to oppose the appeal that you bring in this Court, are you?

MR KIRK:   I put it this way, that for the reasons I am about to seek to articulate, the consequence of a finding of apprehended or actual bias in a judicial officer is that it means there should be a new trial and they sought such a finding, they obtained such a finding.  Having sought and obtained such a finding, there needs to be a new trial.

KIEFEL CJ:   How do you say that your client, though, can bring an appeal to this Court seeking relief, which it opposed below?

MR KIRK:   Because it was always opposed on the basis that, but if it is made out the consequence must follow.  So all I am seeking to put is the secondary part of the argument that we put below, that if it is made out the consequence of a new trial must follow.

KIEFEL CJ:   But you argued below that it was not made out.

MR KIRK:   True.  We did argue that below.  We acted as a contradictor, but the finding was made out.  There is now the finding that that long decision of Member Smith is infected by apprehended bias and it undermines everything that has occurred to date.  So all we are doing is seeking to point out the legal consequences and in that sense, to come back to your Honour Justice Edelman’s question, hold them to their election.

Now, I do not in the end want to get bogged in issues of waiver and election and all that in terms of some kind of issue of civil procedure.  My core point is one of fundamental principle, namely, that when such a finding is made – for reasons I am about to seek to articulate – this consequence follows, certainly, at least in the absence of exceptional circumstances and there are ‑ ‑ ‑

EDELMAN J:   That is your point of law, but you do not take a point that the respondent is not entitled to stand up in this Court and make arguments to the contrary?

MR KIRK:   It is perhaps a subtle decision – a subtle distinction.  We say, in the end, that they cannot because of what has happened but as a matter of law and that is the primary way we put it – the fundamental way we put it.  So if I can seek to develop that argument.  I was taking your Honours, briefly, to Ebner.  It starts at page 533 of volume 3, relevantly, in the plurality judgment with which Justice Callinan agreed, page 540, paragraph 6, of course, very familiar terms.  So there the, what is sometimes called the “two mights” test is stated.  But if I can draw attention to the last three lines on page 540, that principle ‑ ‑ ‑

KIEFEL CJ:   Which page of the report?

MR KIRK:   Sorry, your Honour, paragraph 6, page 540 in the book, which is page 344 of the CLR:

That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.

Then the first two sentences of 7:

The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial.  So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined.

So it goes to the very integrity of the judicial system. That then takes me to the concrete case, which is earlier in the volume – that is 229 CLR 577 in the volume, starting at page 472. First, if I can go to Acting Chief Justice Gummow’s judgment at page 476 of the volume, 581 of the CLR. To remind your Honours of the context, this was a case where it was a copyright case. In somewhat convoluted circumstances, Concrete Pty Ltd said it had an implied licence to use some architectural plans and it sued for in effect a declaration that it had such an implied licence, and also sued saying that – I forget the section of the Copyright Act saying well, you have threatened me with breach of copyright without justification.

It was heard before Justice Conti in the Federal Court who found there was an implied licence.  There was then an appeal.  The Full Federal Court held there was not an implied licence, so the applicant, Concrete, lost.  But also on the appeal, Parramatta Design argued that his Honour Justice Conti had manifest bias in some of the interactions between the Bench and the Bar and the Full Court dealt with that by finding his Honour was biased.  But having found that the implied licence did not exist made orders to that effect, so in effect, the case was dismissed - Concrete’s claim to an implied licence was dismissed.  Their Honours then jumped to paragraph 2 of Justice Gummow’s judgment:

In proceeding in this way, the Full Court itself fell into error.  The present respondents . . . were permitted to present their arguments to the Full Court on inconsistent bases.  If the bias submissions were to succeed, the remedy would be a retrial.  If the copyright submissions were to succeed, the Full Court would itself provide the orders which should have been made and there would be no occasion to order a retrial.

The Full Court so disposed of the appeal as to accept the bias submissions but without the consequential relief.  If allowed to stand uncorrected, this outcome would have the adverse consequences for the administration of justice to which Kirby and Crennan JJ refer in their reasons for judgment in passages with which I agree.

That of course is what has happened in this case.  So if I can then take your Honours to Justices Kirby and Crennan, page 506 of the volume, 611 of the CLR.  So what happened in this Court, your Honours will recall, is that this time Parramatta Design lost on both grounds.  The judgment of Justice Conti was restored, there was an implied licence and the bias finding was overturned.  But can I take your Honours to paragraph 117:

Allegations of this nature are serious.  If made, the party making them is obliged to seek relief reflecting their seriousness.

That is consistent with the submissions I have just been putting.  Jumping a sentence: 

An intermediate appellate court . . . must deal with the issue of bias first . . . logically, it comes first.  Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome.  It is for that reason that such questions should be dealt with before other, substantive, issues are decided.  It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues.  Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias. 

Pausing there, your Honours will see a footnote to Antoun v The Queen.  That was a criminal case where a judge in a criminal trial, I think, in the New South Wales District Court prejudged a no‑case submission, rejected it before the argument had been put.  He then heard the argument and rejected it again.  I think there was some later arguably prejudicial interactions.  This Court overturned the convictions of the two appellants and sent it back for retrial even though his Honour was correct to have rejected the no‑case submission and there is a reference there to Chief Justice Gleeson at paragraph 2.  Can I give two further references?  Justice Kirby at paragraph 47 and Justice Callinan at paragraphs 86 to 87.  So, that is the significance of that point.  Coming back to this judgment:

if, as here, an intermediate appellate court finds the allegation made out, but grants no relief because it otherwise finds in favour of the party making the allegation, a defect in the administration of justice has been found to have occurred which, in the absence of any successful appeal on the point, will remain unremedied.  Inevitably, this adversely affects public confidence in the administration of justice.

This was the point your Honour Justice Bell implicitly was raising with me earlier, that it is the very finding of bias having been made, a defect in the administration identified if unremedied, it adversely affects public confidence in the administration of justice and the system is undermined.  In his Honour Justice Callinan’s judgment, if your Honours jump to page 529 in the volume, 634 in the CLR, paragraph 172, I just focus on the last sentence:

The decision that the trial judge had manifested apprehended bias does not –

that is to say would not have disposed of the case completely:

and would have called for an order for a fresh trial rather than orders consequential upon the Full Court’s other holdings in favour of the respondents.

GAGELER J:   Mr Kirk, is there another way of looking at this?  The functions of the Land Court under the two Acts that you took us to are, in the language of that Act, administrative functions.  The recommendation is an administrative decision within the meaning of the Judicial Review Act.  Is one way of looking at the scenario that what you have here is simply statutory administrative functions, admittedly conferred on the court subject to the implied condition that they be exercised without apparent bias?  Therefore, you have an invalid decision, quite apart from the effect that the appearance of bias might have on the court as an institution and on the administration of justice generally, you just have an invalid decision.

MR KIRK:   The simple answer is yes and, indeed, I am going to develop that very point…..succinctly.  That is not however to also undermine the point that this is a court – and as I sought to show earlier – it always acts as a court and that has significance to the sort of issue I was engaging in discussion with your Honour the Chief Justice and your Honour Justice Edelman, that there is that necessary consequence for this reason.  But even apart from that, your Honour is quite right.

To put it another way, picking up your Honour’s line of thought, the duty of the Land Court has not been fulfilled.  It was referred off to them mandatorily because objections had been made.  There was then a duty on the Land Court to determine those objections, using that language loosely, and give a recommendation to the Minister and the Chief Executive.  That duty remains unfulfilled because there has been no fulfillment of that duty in compliance with the condition of procedural fairness, which is obviously an implied statutory condition.  That is another way of looking at it.

Can I note briefly about the Concrete Case, there is no suggestion that the issue turns on weighing up discretionary issues or that, to quote my learned friend’s written submissions at paragraph 63:

countervailing considerations concerning the interests of justice might outweigh the fundamental concern of apprehended bias -

We note briefly in passing by analogy, and it is perhaps a limited analogy, in Bass v Permanent Trustee Company your Honours will recall the respondent sought revocation of special leave on the basis that the appellants had acquiesced in the separate questions which the High Court considered it was inappropriate for the Full Court to have answered.  At paragraph 56, the majority gave as a reason for declining to revoke special leave that to do so would be:

to sanction departure from the judicial process -

My learned friends say in their submissions at paragraph 60 that in a case like this it is administrative law relief at issue which is always discretionary and there is obviously a degree of truth in that.  I will come to articulate - we do not say that some discretionary issues could never count against seeking such relief, in particular if there had been a long delay, for example, in seeking to do so – I will come back to that – but if there is a properly brought application which is determined and if apprehended or actual bias is made out in the exercise of power by a court, then the matter should go back for a retrial.

My friends say the approach in Concrete is outlined, in what I have taken your Honours to, as mere obiter because the Court found bias was not made out – see my friend’s submissions at paragraph 59.  Whether or not that label is given, the statements made were general.  They were plainly, with respect, carefully considered and, with respect, they were correct.

As we set out in our submissions in paragraph 41, that approach has been applied in numerous subsequent decisions of State and federal intermediate courts of appeal.  So far as we are aware, there is no case where it has not been applied and the respondent has not taken up our challenge to point to any.  That makes this Court of Appeal decision unique.

Can I turn to the Court of Appeal’s two reasons, first, to the lack of utility.  So the court said that Justice Bowskill’s orders “having been spent, there would be no utility in setting them aside”.  There is a bit of an overlap here with the second reason.  Just dealing with the utility issue first, Justice Bowskill’s orders were not just for the applications to be remitted to the Land Court simpliciter; clearly they were to be remitted on the very particular basis I have shown to your Honour, that Member Smith’s findings and conclusions were preserved and maintained.

There is thus clear utility in setting aside Justice Bowskill’s orders and ordering a new hearing.  The now tainted findings, to use the language of Justice Bowskill, of Member Smith will be set aside, that is, on most of the issues that were in play the applications can be assessed on a lawful basis and the administration of justice and the integrity of the legal process will be protected.  That is especially important in matters of public controversy, which these matters tend to be, and this matter is. 

It might be acknowledged, and this overlaps a bit with something your Honour the Chief Justice has raised with me, that the – can I acknowledge that the finding of apprehension of bias was an apprehension of bias against the respondent, not against my client.  But can I just point to a couple of points in the Court of Appeal’s first decision which rather nicely, with respect, illustrates why one would not limit it in that way.  If your Honours turn to core appeal book 2, page 785, paragraph [103], the court said:

The fact that the Member decided some issues in favour of Acland is a factor that must be taken into account.

Interposing there, in fact it was most issues. 

However, the Member could hardly have decided every issue against Acland.

Then if your Honours go back to page 783, paragraph [96], there is a quote from Justice Aickin in this Court, particularly the second sentence:

In some circumstances repeated denials of prejudging might well convey the impression of ‘protesting too much…’.”

Now, I would also draw to attention that Member Smith was well aware of the risk of a bias application being made because his Honour referred to that in one of the exchanges on 2 February 2017.  That is quoted at page 770 around line 20 in that rather unfortunate day. 

So where, in those circumstances, Member Smith ultimately found and recommended against the applications but decided lots of things in favour there is every reason to think without saying anything particular about Member Smith that, well, I will not fight against them on everything.  Just enough is a possibility.  So one cannot isolate the bias and say it is just about them – it infects the whole decision. 

GAGELER J:   What is the utility of the declaration that was actually made?

MR KIRK:   The only utility, but this cannot have been intended - it comes back to my answer to your Honour earlier where I alluded to the - your Honour raised with me the issue about would that be binding between the parties, I said yes.  I alluded to the fact that I doubted that was intended.  The reason I doubt that was intended, with great respect to the Court of Appeal, is it undercuts their reasoning because the effect of that - if there is any utility in the declaration it means if my client files an application for judicial review tomorrow against President Kingham’s decision and makes exactly the argument I am putting today, there is a finding of apprehended bias and, subject to just filling in the links in the chain which I am about to go through to say well, the bias in Member Smith’s decision infects President Kingham’s decision we would win and yet the reason we did not win is because of President Kingham’s decision.

So, insofar as there is utility, it undermines the reasoning of the Court of Appeal, otherwise there is no utility.  This is not a context like Ainsworth of vindicating a reputation, otherwise the declaration serves no purpose except to confuse the Minister.  As I put earlier what is the Minister to do with it.  

I should make a further point that there would be utility in setting aside the orders of Justice Bowskill and ordering a full rehearing even if the recommendations of President Kingham remain on foot.  For reasons I am about to come to we say they do not, but even if they did, to quote, for example, Chief Justice Gleeson in Bhardwaj at paragraph 5, without going to it, “There is nothing in the nature of an administrative decision that requires a conclusion that a power to make a decision once purportedly exercised is necessarily spent”. 

In other words, where the Court of Appeal declared the findings of Member Smith were substantially – were biased and the declaration denudes the recommendations of President Kingham of any usefulness, whatever the status of President Kingham’s decision there is utility in going back and doing it again which brings me to the Court of Appeal’s second reason, the supposedly binding nature of President Kingham’s recommendations. 

The argument has three steps, in our respectful submission. First, there was jurisdictional error in Member Smith’s decision. Can I just note one side point because a lot of emphasis has been given by my friends to section 30 of the Judicial Review Act.  Without going to it, the further amended application for review is in core appeal book 2, page 681.  It was an application for, I think, it is called statutory review under the Judicial Review Act (Qld) but also was an application for general law review, if I can use that broad term, which is preserved in substance by section 43 of the Judicial Review Act and section 58 of the Constitution of Queensland. 

So, the federal sphere - it is like you always go AD(JR) Act and 39B if you can.  Here they both went under the statutory regime and the general law regime.  No distinction was drawn in the way it was analysed and the general law principles were applied.  So, this is not a case which turns just on the statutory form of review.  This was jurisdictional error.  It flows from the way it was put.  So, that was the first point.

The second point, Member Smith’s findings were founded substantially – sorry, President Kingham’s decision was founded substantially on Member Smith’s decision.  That is common ground - see my friend’s submissions paragraph 19.  The ultimate positive recommendation of President Kingham is thus necessarily affected by the apprehended bias of Member Smith on most of the issues which were in play.  Now, my friends say, but there was no bias finding against President Kingham, absolutely true, but that does not alter the substance of the infection that has occurred.  

Thirdly, third step, decisions of inferior courts infected by jurisdictional error are, at least in the ordinary course, a nullity.  That, of course, is a key distinguishing feature between inferior courts and superior courts.  Authority for that proposition we have cited, I will not go to it, Pelechowski in this Court, picking up something Justice McHugh had said in the Court of Appeal and your Honour Justice Gageler also stated it in Kable (No 2) ‑ ‑ ‑

GAGELER J:   They are cases about judicial orders.  You are not even in that territory.

MR KIRK:   Indeed, exactly.  And, in fact, again without getting bogged into interesting side questions, in the plurality’s judgment in Kable (No 2), for example, there was discussion of – I think it is Love v – I forget the second party – where even a superior court is exercising administrative functions, then different sorts of principles apply.  Here we have got an inferior court dealing with administrative functions so, plainly, different considerations apply.  That being so, the decision of President Kingham, through no fault of her Honour:

is properly to be regarded, in law, as no decision at all.

I quote Bhardwaj, at paragraph 51, and:

the duty to make a decision remains unperformed –

to quote Bhardwaj, at paragraph 53.  Now, I said I would take your Honours back to part of the Court of Appeal’s reasoning in the second decision.  Core appeal book, page 792, paragraph [15], beginning:

Had Oakey prevailed in its argument –

So what the court indicates is that, if Member Smith had been right on the groundwater issue and his recommendation had not been affected by bias – in other words, if my client had won on everything, as opposed to losing on everything, then the result must be that Justice Bowskill’s orders would be set aside.

The result, then, would be that Member Smith’s recommendation would not have been set aside and, presumably, would be on foot and binding.  But, on the Court of Appeal’s reasoning, President Kingham’s recommendation would also still be on foot and binding.  So, in that scenario, there are now two binding recommendations to contrary effect.

Now, either that is perfectly legitimate, in which case there was no reason for the Court of Appeal not to have remitted it back.  Or, alternatively, our primary argument but it does not much matter, President Kingham’s decision was infected by jurisdictional error and invalid.  Paragraph [15] illustrates one of the problems with the Court of Appeal’s reasons.

Can I then turn to my friend’s defence on this point.  They seek to characterise – they said in their written submissions at paragraph 17 that our arguments attacking President Kingham’s decision was the central tenet of our argument.  That is not so.  The central tenet of our argument is simply that the Court of Appeal overturned Justice Bowskill’s findings.  As a result, the remittal orders, which were founded on the premise that the findings were not infected by bias, should be overturned and the orders sought in the cross‑appeal should, in substance, be made.

But my friends make three arguments in substance as to why President Kingham’s decision was not infected with jurisdictional error. First, they say that the remittal orders were supported by section 30 of the Judicial Review Act.  Secondly, they say that is reinforced by the fact that the remittal orders were made by the Supreme Court, as a superior court of record whose decisions are valid until set aside.  And, third, they say the orders of the Land Court are valid until set aside because they are supported by the particular statutory regime, the MRA, the EPA and the Land Court Act.

As to the first and second of those, there is a simple primary answer.  They assume what they seek to prove.  The very issue is whether or not the remittal orders made by Justice Bowskill should be overturned on appeal – that is the issue before this Court.  To then say, well, you cannot overturn the remittal orders because President Kingham’s decision stands in the way, and that is protected by the remittal orders, or somehow elevated by the remittal orders, is a classically circular argument.

It is thus not strictly necessary to determine whether the remittal orders somehow protect the orders of President Kingham from the consequence of being affected with bias.  If the remittal orders are overturned, then they no longer offer such protection.  And as I have sought to emphasise, everyone knew about President Kingham’s decision when the cross‑appeal was pressed.

It was always implicit in the respondent’s cross‑appeal that anything done pursuant to the remittal orders would be of no legal consequence.  In any event, however, neither the remittal orders nor the statutory scheme protect the orders of President Kingham from the effects of a finding of bias.

Some of the arguments put by my learned friends in writing come close to suggesting that the decision of President Kingham should be treated as if it was made by a superior court of record, but it is not.  The Land Court’s powers that were exercised by President Kingham did not come from the remittal orders.  The remittal orders confined the task that was being undertaken but the source of power for the task was not the orders, it was the statutory regime – the MRA, the EPA and the Land Court Act.  So the confining orders did not elevate or protect or empower anything that was subsequently occurring, they simply confined. 

Contrast the position in Kable No 2, which my friends give inordinate emphasis to.  There it was held that the Supreme Court’s order itself provided a source of power for the state to imprison Mr Kable.  Here the source of power is the statutory regime.  More generally, and turning to the statutory authorisation argument, one would not lightly infer that any statute would authorise or direct an inferior court – even a tribunal, even an administrative decision‑maker, but especially a court – to act in a way that results in denying procedural fairness by way of bias, actual or apprehended.

As I noted when going through the legislative schemes, it is apparent that the very purpose of allocating a recommendation role to the Land Court is to give the benefit of an impartial and independent assessment to the decision‑makers and that is a mandatory relevant consideration to take account of the recommendations.

At one point in my learned friend’s submissions, paragraphs 45 to 46, they seem to go so far as to suggest the Land Court was not obliged to afford procedural fairness.  They seem to suggest that all that is needed is that there be a recommendation in fact, regardless of validity.  That rather extraordinary submission is inconsistent with NAC’s own acceptance at paragraph 37 that section 7 of the Land Court Act:

imports a requirement to provide procedural fairness.

And that the section, to quote there paragraph 37:

draws no distinction between the judicial and administrative jurisdictions of the Land Court.

Further, without going back to it, as the Court of Appeal noted in CA1 paragraph 20, as a court of record, notwithstanding it is an inferior court, the Land Court must have and maintain the characteristics of an Australian court.  The most fundamental of these characteristics are independence and impartiality. 

In the absence, at least, of the very clearest of words, none of the statutory provisions here could be regarded as conferring a power to make a decision which is based on findings affected by bias, regardless of whether that arises from a remittal or not. 

My friends point to various claimed practical difficulties that would arise if Land Court recommendation decisions could be affected by jurisdictional error.  These are overstated as often with “sky falling in” arguments.  No doubt some uncertainty is created by the fact that a decision of an inferior court of this kind of issue here may be a nullity.  But this court has accepted, even so, they may be. 

As the plurality also explained in Kable (No 2), again, without going to it, at paragraphs 21 and 22, it is too simplistic to assume that the universe of error is divided into two neat categories of void and voidable.  A decision may be infected by jurisdictional error but still become practically unchallengeable – as the plurality explained, by reference I think to something Professor Wade had said.  One needs to consider who had standing to challenge, and whether there is a remedy available. 

If an issue is sought to be raised – and my friends say well, if all of this can be unwound because of some error by the Land Court, then significant expenditure by mining companies might - tens of millions or hundreds of millions of dollars later, years down the track, might be unwound.  But that is not a real submission where you have to have a party with standing come to the court years later to seek relief to say I did not mention this five years ago before they spent their $300 million, but that submission was affected by bias.  It is not a real submission, in our respectful submission. 

If there is any discretion to be exercised by the Court here – our primary submission is that there is not – but if there is, there are no sufficient justifying circumstances here.  First, the respondent complains of detrimental reliance, submissions paragraphs 64 to 68.  It says that following President Kingham’s conditional recommendation it accepted a more stringent condition about noise. 

It also says its mining project is ongoing and it has taken steps on the faith of Justice Bowskill’s decision and the subsequent decisions.  But it was well aware of all that when it elected to make its choice at the hearing because President Kingham’s decision had already been made.  It no doubt had its own strategic reasons for its judgment, and, incidentally, as I noted, the two mining leases still have not been granted pending what happens in the courts. 

Second, my friends say at paragraph 67 that President Kingham was not the final decision-maker in this area but was just making a recommendation.  They say at paragraph 56 that the declaration made by the Court of Appeal was “an appropriate means” of giving effect to the finding of bias, because;

It signalled to the Minister in particular that, whilst there was an entitlement to make a decision, full independent consideration was required. 

As I have already put, what is the Minister to do with that signal?  The very thing he/she was supposed to have was full independent consideration.  Third, my friends say at paragraph 68 the appellant has “had its day in court” and “lost all grounds of objection”, but neither side have had their day in court unaffected by apprehended bias. 

To turn briefly to my two final topics, first, invalidity of the related decision, so there are two at play here, and to be clear the appeal does not turn on this, but we seek consequential orders really as a matter of clarity and certainty.  This relates to the decision first of President Kingham, and secondly the decision of the delegate of the second respondent to amend the environmental authority under the EPA.  As I said, the appeal does not turn on this, but we seek it. 

As to the decision of President Kingham, it really follows from what I have already put it is the logical consequence of the nuclear effects of the bias finding.  Our, to set aside that decision, we respectfully submit, is found in rule 658 of the UCPR of Queensland, read with rules 5 and 766.  If I could take your Honours briefly to rule 658, it is in the small other legislation volume B2.  It is not very long, so I can effectively read it to your Honours.  It is at page 367 of the joint book, heading “Chapter 16 Orders” – 658:

(1)The court may, at any stage of a proceeding, on the application of a party, make any order, including a judgment,  that the nature of the case requires.

(2)The court may make the order even if there is no claim for relief extending to the order in the originating process, statement of claim, counterclaim or similar document.

GAGELER J:   What about parties, Mr Kirk?

MR KIRK:   Yes, now that is an issue.  I have to accept that.  It is not an issue for the delegate, to which I will come shortly.  President Kingham, however, is not a party to this proceeding.  Ordinarily, of course, one does not join members of court, certainly in appeals, but this was a judicial review application.  Member Smith was a member, President Kingham is not.  That does constitute a possible barrier to the submission I have just put, I acknowledge that.  That being said, and this may or may not overcome the issue, inevitably, were President Kingham to be joined, she of course would put in a submitting appearance, and it would follow as a matter of course that the relief should be granted, but I do recognise that is a technical thing that stands in my way as regards to that little issue.  But it also ‑ ‑ ‑ 

EDELMAN J:   Why could that not be done in a separate judicial review application?

MR KIRK:   That was the next point I was about to make, your Honour.  It comes back to my exchanges with his Honour Justice Gageler earlier that, we say, as I put earlier, we could file a judicial review application tomorrow and even from the declaration we would say that that should follow as night follows day.  In a sense we seek it as a matter of tidiness, but I do recognise that technical issue.

GAGELER J:   But you are not seeking joinder, are you?

MR KIRK:   No, no.

GAGELER J:   You eschew joinder?

MR KIRK:   In effect, that is the highest I can put it, that is the highest I can put it.  Were her Honour to be joined, we all know her Honour would put in a submitting appearance, so it is a formality, but I accept sometimes formalities matter.  I think I will put it aside, if I can put it, your Honour.

As regards the decision of the delegate of the second respondent no such issue arises because self‑evidently the second respondent, the Chief Executive of the Department of Environment and Science, is a party here.  He/she ‑ I do not know, I am sorry ‑ has put on a submitting appearance.

Just for completeness, in the Court of Appeal the Chief Executive was represented by senior counsel and put in submissions which, without going to them, are found in the appellant’s further submission at pages 288 to 289, submissions after the first Court of Appeal decision and before the second where the Chief Executive said he/she was neutral as to what order should be made about the efficacy of the environmental authority but noted that the environmental authority was:

granted . . . (in part) based upon Mr Smith’s recommendation, albeit after President Kingham had conducted the remitted objections hearing –

Finally, and very briefly, costs.  As I noted, Justice Bowskill directed each side bear its own costs.  In the first Court of Appeal decision the court indicated the proposed orders, which would have left that in place as regards the Supreme Court, but ordered my client to pay costs in the appeal.  In the second decision, the actual orders made were that my client pay costs both at first instance and on appeal, so order 9 of Justice Bowskill was overturned.  The respondent says that was by consent.

As regards costs in the Court of Appeal, we did propose those orders.  It was not meaningfully by consent in that we had lost in the Court of Appeal.  The Court of Appeal had indicated its proposed orders and we did not submit to the contrary in light of that, so that was perfectly reasonable, but not by consent.

However – and it is another oddity of this case, with respect – despite the indication in the proposed orders leaving intact no order as to costs at first instance, we conceded that we should pay costs at first instance.  The only reason which can be given for that, if I can put it that way, was a sense of despair.  The concession was wrongly made.  In any event, the orders of Justice Bowskill and the Court of Appeal are in dispute.  The very thing we seek to overturn are the orders of Justice Bowskill.

The order that we seek is a costs – if I could go back a step.  Because we are seeking to overturn the orders of Justice Bowskill and the orders of the Court of Appeal, costs are in play as regards both levels below.  In this Court we understand there is no dispute that costs should follow the event if we succeed in this Court.  As to below, we submit it is appropriate there be no order for costs in either court below.  We rely on our written submissions in that regard.  In brief, we note, first, the appellant was playing the role of a necessary contradictor; secondly, it is particularly important where an issue of bias is raised as regards the judicial process; and third, what might loosely be called the public interest nature of the challenge.  Unless there is anything further, they are the submissions for the appellant. 

KIEFEL CJ:   Yes, thank you, Mr Kirk.

MR KIRK:   Now, for the first time in my career I need to do a bit of housekeeping in a literal sense.  So if your Honours give me a minute.

KIEFEL CJ:   Yes.

MR KIRK:   Sorry, not the first time in my career ‑ at the Bar table, I should say.  I have done lots of housekeeping otherwise.

KIEFEL CJ:   Thank for your assistance there.  Yes, Mr Gore.  And, Mr Gore, I should clarify the appearances I announced.  To be clear, you are appearing for the first respondent only.  The second and third respondents have submitting appearances.

MR GORE:   That is correct, your Honour.

KIEFEL CJ:   Thank you.

MR GORE:   Your Honours, we do not propose to unnecessarily duplicate our written submissions.  May I be granted the liberty at the start to identify the basic questions that arise in the appeal.  The first is, did the Court of Appeal have a discretion as to what relief it should grant to reflect the respondent’s success on the apprehended bias issue and, if so, did the Court of Appeal err in principle in granting the relief that it did? 

Secondly, bearing in mind that the first Land Court decision, that of Member Smith, has already been set aside by the orders of Justice Bowskill, what was the status of the second Land Court decision, that of President Kingham, at the time the Court of Appeal had to make its decision about relief?

Thirdly, do the procedural rules, dealing with the powers of the Court of Appeal, enable it to grant substantive relief at the suit of the appellant in relation to the decisions of President Kingham and the 2019 second respondent’s decision, even though no such relief in the proceedings before the Court of Appeal had been formally sought.  Obviously, what we imply by that is there may be scope for other proceedings elsewhere, as Justice Edelman raised, but there were no such proceedings in this Court.  If the answer to that question were yes, should such relief have been granted?

Your Honours, there are many facts that underpin the circumstances of this appeal.  There is overlap with the questions that arise.  We would submit that there are four basic considerations that underpin those basic questions.  The first is that the proceedings in the Land Court did not involve orthodox inter partes litigation or anything similar.

The second is that under the statutory scheme created by the three statutes to which you have been taken ‑ the Land Court Act and, may I use the acronyms, the MRA and the EP Act – the recommendation of the Land Court is a step in the process towards final decisions but the final decision‑makers are not bound to accept those recommendations or reject them in any respect.  Thirdly ‑ ‑ ‑

GAGELER J:   It is also a statutory precondition to the making of the decision.

MR GORE:   It is, your Honour, and I will come to the question of jurisdictional error and the like in due course, but the important distinction is between the fact that a recommendation has been made, not its content.  Whether it is favourable or unfavourable, or the particular reasons relied upon, they are not a condition precedent to the power of the Minister to decide or the environmental administering authority to decide.  Each is free to accept or reject the recommendations as it sees fit.

The third basic consideration is that the appellant did not seek to prevent President Kingham from making recommendations and the appellant has never suggested that either Member Smith or President Kingham committed any material error.  I will come later to the effort by the appellant to infect President Kingham’s decision with the errors of Member Smith.

Fourthly, the issues in this appeal relate only to consequential relief in what is, at least to this point in time, the last of a series of steps in a process that commenced over 13 years ago and obviously that is material to the questions of discretion that arise on the basic questions that I have identified.

Our learned friends have said, both orally and in writing, that the respondent misses a core point which is that all that the appellant seeks is the relief that the respondent sought in its cross‑appeal.  But what that overlooks is the fact that there were significant changes in circumstances after the appeal and the cross‑appeal were instituted.  I think it must have been a slip of the tongue that our learned friend today said that New Acland instituted the cross‑appeal in full knowledge of the recommendations of President Kingham.  That is simply not correct because those recommendations came after the appeal and cross‑appeal and our learned friends correctly informed the Court that its first step was to seek an adjournment of President Kingham’s process of the remittal hearing in the light of the appeal and the cross‑appeal.  That was unsuccessful and that led to the second decision by President Kingham which involved the recommendations. 

So, it is quite false, in our submission, to describe that as a core point when it is clearly at the heart of the respondent’s submissions that the significant circumstances that influenced the Court of Appeal were the circumstances which had occurred after the appeal and cross‑appeal had been instituted.  Indeed, neither side sought from the Court of Appeal following the decision in what has been called “CA1” the relief that it had sought in the appeal in the case of the appellant or the cross‑appeal in the case of the respondent.  Both sides sought different relief.

It was by agreement that both sides were given an opportunity to consider the reasons of the Court of Appeal to consider the orders that they were inclined to make in paragraph [117] of their decision and to make fresh submissions about what orders should be made and the Court of Appeal was conscious of that in the respondent’s further material book, the thin one, your Honours, at page 46 – the President recorded between lines 1 and 9 that copies of the reasons be handed out to the parties.  He gave a summary of what was proposed but then between lines 8 and 10 said:

So those are the orders that are proposed at paragraph 117 . . . But you’ll have to think about that and what you want to do in the events that have happened.

It is the events that have happened which justified, in our respectful submission, the decision of the Court of Appeal below and explained why New Acland sought the liberty to make fresh submissions.

BELL J:   Mr Gore, just before you leave the respondent’s book of further materials, we were taken by Mr Kirk to the email sent by his predecessor to the Court of Appeal registry on 26 February 2019 which referred to President Kingham’s recommendation to the third respondent, the Director of Environment and Science.  So, do we understand that before the Court of Appeal hearing the court was made aware of the fact of President Kingham’s recommendation?

MR GORE:   That is so, your Honour, but the focus, as it were, was different at that time.  Your Honours will see from the terms of the email that what the Court of Appeal was being advised was that these subsequent events meant that the noise grounds, in both the appeal and the cross‑appeal, were academic.

BELL J:   I understand that, Mr Gore, but in addition what was being drawn to their Honours’ attention was the making of the recommendation following the remitter.

MR GORE:   That is correct, your Honour, but nobody focused at that stage on what impact that might have on the relief that the court should grant.

BELL J:   I understand that.

MR GORE:   That explains why, at least from the respondent’s perspective, it sought the indulgence of being able to make further submissions, a position that the appellant agreed with.  Your Honour, one cannot underestimate the significance of the environmental authority that was granted, post the argument in February 2019 and before the decision in CA1.

If I could oversimplify it by saying that was 50 per cent of what the respondent was after.  It was after a mining lease and the amendment to the environmental authority from separate bodies, as has been explained.  It got 50 per cent of that and all that remained was the other 50 per cent and that made it highly relevant for the respondent to look very carefully at what relief should be granted.

KIEFEL CJ:   Now, that occurred on 12 March, after the hearing and before the reasons.  But at the time of the hearing and the transcript to which we have been taken, the discussion with the President of the Court of Appeal, the first respondent must have appreciated it was running some risks.

MR GORE:   Your Honour, that is fair.  Although the President used the term “election” in the reasons, it was an election of a very unusual kind.  Given that circumstances were ongoing, and no one could predict what was going to happen after the argument, may I be permitted to characterise it as an election to accept whatever the correct consequences in law were or are as a result of what the Court of Appeal’s decision should happen to be. 

Now, I accept that, in the exchanges that occurred with the court we acknowledged that that would involve a retrial.  But the matter was looked at afresh when the environmental authority was granted and in the light of the Court of Appeal’s reasons.  It is not insignificant to the general interests of justice questions that we say arise in this appeal that we won both points, as it were, in the Court of Appeal. 

Although the decision on the groundwater was, strictly speaking, obiter, it was requested by both sides to minimise inconvenience in what the Court of Appeal described as the long and unhappy circumstances of this case.  So that there were very good reasons for the Court of Appeal to pause before sending everybody back to day one of what turned out to be a 100‑day trial previously, with obviously serious adversarial contests after Member Smith’s decision with the judicial review proceedings and then appeals to the Court of Appeal.  It was the appellant, after all, that did not take the referee’s decision of Justice Bowskill and instituted the appeal to the Court of Appeal.

Although reliance is placed upon the consideration that one cannot isolate out those parts of Member Smith’s reasons which might be thought to be affected by apprehended bias and those not, it really is quite conjectural and it is almost accusing Member Smith of actual bias in suggesting that those findings which were favourable to New Acland were deliberately made favourable to New Acland to remove the appearance of apprehended bias and that is verging on actual bias.  That is quite a serious allegation to make. 

The safeguard, your Honours, in that respect, is the power of the Minister to refer a matter back to the Land Court.  That is expressly contained in section 271A(1)(c) at page 225 of ‑ ‑ ‑

KIEFEL CJ:   Are you suggesting that that is what the Court of Appeal had in mind?

MR GORE:   I cannot suggest that directly, your Honour.

KIEFEL CJ:   Was that in the submissions put to the Court of Appeal?

MR GORE:   I do not think it was.  I can have that checked at lunchtime, but I do not think so, your Honour.  Everyone is calling out to me that it was.

KIEFEL CJ:   Too much help.

GAGELER J:   Mr Gore, just related to the submissions were made, would you also check, I understand you to be saying, that the orders now sought in respect of President Kingham’s recommendation and the decision of the second respondent were not sought before the Court of Appeal as alternatives to the orders that were, in fact, made?

MR GORE:   I might have misunderstood the question, your Honour.

GAGELER J:   I am just looking at the notice of appeal to this Court and we are asked to set aside standing in the shoes of the Court of Appeal, the recommendations of President Kingham and also the decision of the CEO or the delegate.  Were those orders asked of the Court of Appeal?

MR GORE:   At the CA2 stage, they were, your Honour.

GAGELER J:   I see.

MR GORE:   But they were not part of any formal relief.  It was in ‑ the President made directions that the parties should exchange the orders that they propose should be made together with brief submissions to support those orders and what emerged from the appellant’s perspective was, amongst other things, seeking an order that the decisions of President Kingham and the 2019 departmental decision should be set aside. 

We make the point and it is really an advocate’s grumble rather than anything else, that correspondence had been received from the appellant’s solicitor around about the time of the hearing foreshadowing that that is the relief that they would seek if they won the appeal.  Yet, in the light of the reasons in CA1 they maintained the position that that is the relief they wanted even though they had lost.  As I say, it is really an advocate’s point rather than one of substance, but it was not formalised. 

There was no amendment by either side to amend either the appeal or the cross‑appeal but both sides presented orders which were different to those that those formal documents had proposed.  The difference in the appellant’s case is that it sought relief involving, in effect, non‑parties.  The respondent did not.

GAGELER J:   While I have detained you, is part of your argument that the declaration to the effect that there was a failure to observe procedural fairness in making the recommendations does not necessarily mean that there was apprehended bias in the findings upon which President Kingham relied?

MR GORE:   I cannot submit that the findings of Member Smith are unaffected by apprehended bias.  But the difficult question that arises is, what is the implication at law for the incorporation of those findings into President Kingham’s decision in circumstances where her Honour was bound by Justice Bowskill’s order to, in effect, act on that basis?

It is a question in respect of which neither side has been able to find any authority which is remotely similar.  The appellants made the suggestion – or the submission, I should say – that accepting that there was apprehended bias with decision 1 and that decision 2, the Kingham decision, is based in part on decision 1, means that decision 2 must also be affected by apprehended bias.

But we submit that that does not follow at all, in circumstances where firstly the decision of Member Smith had already been set aside, albeit for a different reason.  So it was set aside by Justice Bowskill because of jurisdictional error involving taking groundwater into account when his Honour should not have.  So it had gone, and the question for this Court is whether the findings that were incorporated in the second decision in some way taint it.

We propose to take your Honours to a decision of this Court in what I will call Hot Holdings (No 2), which has a mining background.  We get a lot of law in this area from Western Australia – some from Queensland, but more it seems from Western Australia.  In Hot Holdings (No 2), which I might briefly foreshadow ‑ it was an additional case, not in the original bundle – that was a case where it was established that two officers who were involved in the recommendation process had in effect shares in the company that would be successful if the Minister made a recommendation in favour of the licences applied for. 

There was no suggestion of fault on the part of the Minister himself and the question was in effect whether the Minister could be tainted with the obviously inappropriate involvement of the two officers who had an interest in the outcome.  This Court held that the decision was in effect free of bias, that it should stand, and although it is not directly on point because it does involve different circumstances, it does raise the interesting conceptual issues that are involved here.  What is the law when it cannot be said that the actual decision-maker is affected by apprehended violence.

Chief Justice Gleeson spoke of depersonalising the decision and the bias and both the Chief Justice and other members of the Court deprecated the use of terms like “taint” and “entrench” and so on – and I will come to those passages in a moment, but they are material to our learned friend’s submissions.  In their oral outline they use those terms on at least three occasions.  In paragraph 11 they talk about:

the now tainted findings of Member Smith –

In paragraph 14, the error with Member Smith:

infected the decision of President Kingham.

and in paragraph 16, that:

Because Member Smith’s decision was infected with jurisdictional error –

et cetera.  So there is a leap of faith there; there is no authority to support that.

EDELMAN J:   Well, your submission, effectively, is that any jurisdictional error in the President’s decision cannot be based upon apprehended or actual bias because there was no apprehended or actual bias in the decision‑maker herself but it must be founded upon some other ground of judicial review, such as taking into account an irrelevant consideration or material that ought not to have been considered.

MR GORE:   I agree, with respect, your Honour, and with the two options that your Honour has put forward, that is not the way the argument has been articulated against us.  It is an effort by the appellant to taint the second Land Court decision with the apprehended bias of the first.

It would be necessary for the appellant to recharacterise its argument and to invite this Court to characterise the error, if there be error, in President Kingham’s decision differently from the way they have conducted the argument to date.  We alluded to this in paragraph 18 of our submissions.  I do not ask the Court to go to that now, but we flagged this as a genuine issue, and it has not really been further developed by the appellant.

Your Honours, we do submit that Kable (No. 2) does have a big role to play in the decision in this case.  We have submitted in our oral outline that the position here is stronger than in Kable (No. 2) because your Honours will recall that the imprisonment of Mr Kable was found ‑ the act was found to be unconstitutional, but still his detention was not held to be unlawful because it was valid pursuant to the order made by Justice Levine.

Similar if not stronger considerations apply here to the decision of President Kingham, bearing in mind that this is the second recommendation and the only one that in effect exists of the Land Court.  It was made pursuant to orders of the Supreme Court by Justice Bowskill, exercising the powers under the Judicial Review Act, but as this Court said in Kable, in effect you do not even need to point to a statutory source.  The power of the Supreme Court as a superior court of record is source enough for the validity of acts which are carried out on the faith of those orders even if subsequently there is some defect found in the source of power.

May I be permitted to just take your Honours to a few of the passages in Kable (No 2) which is case number 25?  Your Honours, I confess I have been working from a copy I have had for some while from the Commonwealth Law Report, if you want me to find the pages in the book I can.  It starts at 1152 but is it convenient to the Court if I use the Commonwealth Law Report’s pages?

KIEFEL CJ:   I think it will.  I am sure other members of the Court will let you know if that causes a problem.

MR GORE:   Thank you, your Honour.  So, in the judgment of the plurality, we would first like to highlight what were described as more fundamental considerations, this is at page 135 of the Commonwealth Law Report report which is page – going against what I have said ‑ 1169, in the joint bundle, and their Honours which are inclusive of, obviously, three members of this Court, said in paragraph 38 in the second sentence:

There must come a point in any developed legal system where decisions made in the exercise of judicial power are given effect despite the particular decision later being set aside or reversed.

And the Court went on to say, in 39:

Were this not so, the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given.  And order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. 

Whilst it is not directly on point, those passages raise considerations which are similar to the considerations raised by the attack on the validity of President Kingham’s decision; albeit a decision of an inferior court, it does involve these questions of complexity and uncertainty with an ongoing process such as is involved under the MRA and EPA. 

BELL J:   Mr Gore, before the Court of Appeal the attack was on Justice Bowskill’s orders, that was the subject matter of your cross‑appeal and, for that matter, Oakey’s appeal. 

MR GORE:   That is correct, your Honour, when the cross‑appeal was first instituted.  As I say, the position changed because of changed circumstances. 

BELL J:   At the point where the matter was being argued before the Court of Appeal and when President Sofronoff raised with your client’s counsel the nuclear effect of proceeding with the cross‑appeal, President Kingham’s recommendation had been made and that matter had been brought to the Court’s attention by counsel’s email in relation to the noise issue. 

MR GORE:   Correct.

BELL J:   So it is just not clear to me:  when counsel accepted on New Acland’s behalf the nuclear effect of success on the cross‑appeal, namely, Justice Bowskill’s orders would be set aside and the matter remitted for a fresh hearing before the Land Court, that was against a background of everyone knowing that President Kingham had made the recommendation that she had made.  I am just raising with you, your argument seems to have shifted very considerably from the way the matter was put before the Court of Appeal.

MR GORE:   Your Honour, I accept that, and it shifted considerably before CA2.  I accept that there was a considerable shift from the approach taken before the Court of Appeal for CA1, as opposed to CA2.

BELL J:   The effect of that considerable change is that potentially harmful consequences for your client that were accepted at the point the election was made disappear because you take the point and argue the appeal on the basis of the apprehension of bias and, having succeeded, you then do not face the consequences that are adverse.

MR GORE:   Your Honour, as I think I have already submitted, the true catalyst for that change of position was the grant of the environmental authority.  Your Honour may find that an insufficient explanation for the change, but it is the explanation for the change and it required a revisiting of the status of what had happened before, something that had not been explored with the Court of Appeal, and so that is why ‑ ‑ ‑

BELL J:   Yes, but this is the environmental authority, a precondition for which was the recommendation of the Land Court.

MR GORE:   Correct.  Your Honour, although the submission by the Department suggested that there had been a link between President Kingham’s recommendation and the environmental authority, that was not something that was explored in the evidence because it was not something that was the subject of separate proceedings and it would really need to be properly explored to see how material any impact of President Kingham’s decision was on the environmental authority.  That was one of our complaints.

BELL J:   It was essential that the Minister have before him or her a recommendation from the Land Court before a valid decision could be made by the Minister.

MR GORE:   Yes.

BELL J:   So, your contention is a recommendation that might be based upon findings President Kingham was bound to accept affected by – that were tainted by the apprehension of bias, nonetheless, serves because it is a recommendation.

MR GORE:   Correct.  I was trying not to use the term but may I use the term that Professor Forsyth has used of the second actor theory which your Honour will have seen referred to in our submissions.  It lies at the heart of this aspect of our arguments and I wanted to take your Honours to decisions of this Court and of other jurisdictions which have relevantly accepted that hypothesis because it does bear upon that second question that I posed at the start, what is the status of the recommendations by President Kingham? 

Even if there is some basis for saying that it would be possible to vitiate that decision on, for example, one of the two grounds that Justice Edelman raised, not on the apprehended bias ground, what, though, is its status at the moment when it has not been vitiated?  And what was its status, therefore, when the Court of Appeal had to make the decision the subject of this appeal?  And it was a recommendation, in fact, it is not necessary to establish that it was a legally valid recommendation in terms of its content, only that it existed in fact, and otherwise had complied with due process, meaning the requirements of the Act.

KIEFEL CJ:   That might be a convenient time.

MR GORE:   Yes.

KIEFEL CJ:   The Court will adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Mr Gore.

MR GORE:   Thank you, your Honour.  Your Honours, we wanted to start this afternoon by setting the context for the decision made by the Court of Appeal the subject of this appeal, but since it is obviously important and the setting is distributed through about three different parts of the record, so it is not in a convenient chronological order, so for the Court’s assistance may I be permitted to take your Honours through that context.  Some of it we will not need to look at; some of it I will ask the Court to look at.

It starts with the appellant’s notice of appeal, which your Honours do not need to go to, but that is in the CAB commencing at page 731 with the orders sought at page 734 and that was in May 2018.  The respondents’ cross‑appeal is in the CAB commencing at page 745 and the orders sought in the cross‑appeal are at pages 750 to 751.  That was in June 2018.

The hearing that resulted in CA1 was in February 2019 and for the correspondence that came after that and before the decision the subject of this appeal, in the respondents’ further material, the smaller volume, it starts at page 31 of that volume using the pagination at the top.  This was correspondence of 22 March 2019, which I will invite the Court to look at, at page 31 of the RFM.

I foreshadowed the context of this correspondence this morning where, in the first substantive paragraph, the appellant’s solicitors sought the other parties’ views on the power of the Court to set aside the decision of President Kingham and the final decision of the environmental authority, which by then had been granted:

should our client’s appeal succeed, and New Acland Coal Pty Ltd’s cross appeal against Bowskill J’s decision fail.

There was reference on page 32 to the alternative of instituting separate proceedings.  The other parties were discouraged from allowing that to happen, but they were invited to express their view on whether they would consent to any necessary extension of time for judicial review.  The initial response from the respondents’ solicitors is at page 33, which invited the appellant’s solicitors to indicate what authority there was for the course that it proposed.  At page 34, the Deputy Crown Solicitor for the environmental authority expressed the view that it was:

inappropriate and premature to speculate on the Court’s powers –

absent the decision.  Then at page 35, the appellant’s solicitors responded to the inquiry from the respondents’ solicitors and could not identify any particular decision but agitated for its position.  Then at page 37 the respondents’ solicitors concurred with the view expressed by the Department and expressed the view that it was inappropriate to speculate.

Then at page 49 one finds in this part of the record the orders made by the President on 10 September, when the court as a whole had foreshadowed the publication of reasons, and your Honours will see that it contemplated an exchange of orders and submissions and a decision on the papers.

Then, in the appellant’s further material bundle at page 284, one finds the respondents’ suggestions pursuant to the court directions for orders to be made, and although there is some slight difference in wording, in substance they are the orders that were made by the Court of Appeal that are the subject of this appeal.

The appellant’s proposal is on the next page at 285 and, as I foreshadowed this morning, in paragraphs 4 and 5 of their proposals, they sought orders that the two decisions in question be set aside.  And the Department’s position is at page 286 where we have referred to paragraphs 1 and 2 of the orders proposed in paragraph 117 of the reasons which were the orders other than the orders for costs that had been indicated by the court at that stage. 

Then, in terms of submissions, these regrettably are spread around.  For the appellant, one goes to the respondents’ further material bundle to page 52 and largely the submission was based on the concrete‑type approach.  For the respondents’ submissions, they are at page 58 of this bundle and we do invite the Court to consider these submissions when it is considering its reasons in the case.  It is the document that does contain the reference to section 271A of the MRA that your Honour the Chief Justice asked me about; that is at page 62 in subparagraph (d) on that page which is part of paragraph 19 at about point 7 of the page, you see reference to 271A.

But going back to page 58 – I do not ask the Court to read it now, but the summary is material to the context that the Court of Appeal decided the matter in.  Relevant events were identified and submissions made, including on page 60, in paragraph 12, reference in the first sentence on that page to the proposition that is based on Kable (No 2) that your Honours can see in footnote 16.  So these submissions were the precursor, if you like, to submissions that have been made to this Court.  They were submissions that were in substance upheld by the Court of Appeal.

The Department’s submissions are not in this bundle, they are in the appellant’s further material, at page 288.  I do not ask your Honours to go to that, since they took a backseat role.  There were replies.  The appellant’s reply is at page 64 of the respondents’ further materials and the respondents’ reply is at page 68.

Before I return to the journey through the cases, there is another housekeeping matter to deal with.  Your Honour Justice Gageler raised the question about that aspect of Justice Bowskill’s orders that confined President Kingham in the context of noise to findings but not conclusions.  There is a history to that that I will briefly summarise, but only briefly.

It starts with what I will call, with great respect, “Bowskill No. 1” because we have two decisions from her Honour.  That is in the CAB commencing at page 558.  It is quite a long decision, as your Honours are aware.  The paragraph that is relevant for present purposes is at page 679, where her Honour in paragraph [379] indicated that it would be:

appropriate that an order be made referring the matter . . . back to the Land Court for further consideration –

Her Honour referred to section 30(1)(b) of the JR Act and her Honour spoke of limiting “the scope of further consideration” and invited submissions in paragraph [380] from the parties.

That takes us to what I respectfully call “Bowskill No. 2”, which commences in this volume at page 709.  Again, it is of some length, but I will abbreviate.  Her Honour recorded at page 713, firstly in paragraph [2](b), the passage or the paragraph [379] from Bowskill No. 1 that I have taken your Honours to.  Her Honour recorded in paragraph [4] that there had been a hearing in relation to this reconsideration on 23 May.  This decision by her Honour was delivered on 28 May. 

Your Honours really need to read the whole paragraph, but the thrust of it was that both parties were approaching the reconsideration on a wider footing than her Honour thought was appropriate, and her Honour proposed something – and I use her Honour’s language:

(which was considerably narrower than proposed by the parties), each of the parties, by their representatives, expressed agreement with the approach I had in broad terms outlined.

Her Honour explained the background to that at pages 719 to 725.  There were two decisions of this Court that were significant in her Honour’s consideration of the orders to make.  If one goes to page 719, paragraph [28], the first decision of significance was Park Oh Ho, which is recorded in footnote 9 and an extract from which is set out in paragraph [28], where her Honour emphasised that part of this Court’s decision that spoke of the counterpart provision in the Commonwealth statutes, speaking of the flexibility in the framing of orders and avoiding unnecessary relitigation between parties.

Her Honour then, in paragraph [29], referred to the second decision of this Court, which I will for convenience just call Wang 215 CLR.  And as her Honour recorded, it was apparent to her that the parties were approaching the further consideration on the footing that Wang required a broader consideration of matters than her Honour considered was appropriate.  And it is perhaps sufficient to take your Honours to page 720, where in paragraph [33] her Honour recorded her own view that:

Wang is not authority for the proposition that, whenever a matter is returned, following judicial review, to the original decision‑maker for further consideration, the original decision‑maker is necessarily required to consider the whole of the matter afresh.

And whether her Honour was right or wrong about that, and of course we respectfully acknowledge that it was a correct approach, the parties before her acknowledged that it was a correct approach.  So it was a consensus in the end as to this reduced scope of the further hearing.

BELL J:   What is the significance of taking us to this background against circumstances in which her Honour made clear that had she come to a different view on the question of an apprehension of bias in Member Smith’s reasons, it would have been necessary to remit the whole to another member?

MR GORE: It is really in response to a question that his Honour Justice Gageler raised this morning when Mr Kirk was making submissions, when his Honour made an observation to the effect that we will have to look at section 30 to see whether it did authorise what has happened. Bearing in mind that part of the respondent’s response to the appellant’s case about the implications of the bias finding is that, upon analysis, there are binding decisions that affect what a court should do in the particular circumstances of this case.

So it is relevant to that aspect, your Honour.  And I have just spent a little bit of time on it, because it does have a history that your Honours may not have had the opportunity to grasp – there is quite a bit of material – and it was a specific issue raised by a member of this Court.

BELL J:   Thank you.

EDELMAN J:   This all feeds in, effectively, to your Kable (No 2) submission, which is really, as I understand it, that the effect of Justice Bowskill’s orders was to direct President Kingham as to how the matter was to be decided and so you have the effect of a superior court decision which is implemented by an administrative decision‑maker.

MR GORE:   That is absolutely correct, with respect, your Honour.

EDELMAN J:   And you say that added to that is the fact that that direction, at the time it was made, was the subject of consensus between the parties?

MR GORE:   Yes, your Honour.  With respect, I agree.  And to just deal a little more with some of the cases that deal with the Kable (No 2) type issue – and I have not finished Kable (No 2) ‑ I wanted to make some reference to what your Honour Justice Gageler had said, and this is case 25.

I am just only highlighting aspects but at page 1172 of the JBA, being page 138 of the Commonwealth Law Report, your Honour, in paragraph 52, if I could be forgiven for working up from the footnotes, your Honour in footnote 100 specifically referred to some of the writings of Professor Forsyth on this second actor theory, Professor Forsyth has written quite a bit about this matter and the proposition that, we would respectfully submit, your Honour accepted, was made good by that writing was that ‑ and I will read from the start at paragraph 52:

Yet a purported but invalid law, like a thing done in the purported but invalid exercise of a power conferred by law, remains at all times a thing in fact.

That expression “a thing in fact” is central to this whole aspect of the law.  Skipping over the deprecated references to nullity, your Honour went on:

But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences.

Then there is the reference to Professor Forsyth’s writings.  Your Honour went on, skipping the next sentence, at the top of the next page:

The factual existence of the thing might have led to the taking of some other action in fact.  The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself.

GAGELER J:   When you translate that to the present case, what is the thing and what are the consequences?

MR GORE:   The thing is President Kingham’s decision, so that even if there were any validity in the argument that somehow the apprehended bias that relates to Land Court decision number 1 can be carried forward to Land Court decision number 2 in some legitimate way and give rise to a conclusion of jurisdictional error it still remains a thing in fact which has given rise to legal consequences.

So, the whole concept that is involved in this developing branch of the law is that there can be situations where the law says it is not appropriate to retrospectively invalidate steps that have been taken that were lawful at the time they were taken, or on the face of it were lawful at the time they were taken.  The fact of a recommendation existed.  Should this Court conclude a considerable time later that it is infected by jurisdictional error, that should not feed back and invalidate the steps that were taken.  So, it should not invalidate, in fact, the environmental authority that was granted and it should not stand in the way of the Minister under the MRA granting a mineral lease.

EDELMAN J:   Mr Gore, is that right or is the proper characterisation on your argument of the thing that is taken and the legal consequences that the thing is order 5 of Justice Bowskill’s orders and the consequences is President Kingham acting upon order 5?

MR GORE:   And, your Honour, that is another analysis that we would adopt, most definitely.  That is available.  This concept has scope for application in a number of ways in the unusual circumstances of this case.  I am sorry, Justice Gageler, you were going to ask a question as well.

GAGELER J:   The consequence to which you point depends on the construction of the two Acts in question, does it not, the MRA and the EPA?

MR GORE:   It does.

GAGELER J:   So you have to say both of them, when they refer to a recommendation as a precondition to the making of the decision, refer only to a purported recommendation.  Or, putting it another way, purported recommendation is sufficient to meet the statutory description.

MR GORE:   I would prefer to use the expression “the recommendation in fact”, if your Honour would pardon me for that correction.  And it is perhaps convenient at that point to take the Court to Hot Holdings (No 1), which is germane to this argument.  It is case number 17.

Whilst there is some length to the reasons we can be fairly brief in our assistance with your Honours this afternoon.  The relevant statutory provisions are set out in the judgment of the plurality, commencing at page 679 of the JBA or page 154 of the Commonwealth Law Report.  The first was section 57 of the Act, which dealt with exploration licences, and recorded that:

the Minister may on the application of any person and after receiving a recommendation of the warden in accordance with section 59, grant –

such a licence.  And at page 155 there was a counterpart provision, section 71, set out at line 32, for mining leases.  The key passage is at page 170 of the Commonwealth Law Report, which is page 695 of the joint bundle.  It is an important passage, so I invite your Honours to read from point 5, the heading “Apparent legal effect?” to the bottom of the page.

GAGELER J:   Could you give me the paragraph number, please?

MR GORE:   Mine do not have paragraph numbers, your Honour.  They have lines, so it is line 31.

GAGELER J:   What is the citation, please.

MR GORE: It is 185 CLR 149.

GAGELER J:   I see.  Thank you.

MR GORE:   This was before the time when paragraph numbers became standard, your Honour.  It is 695 of the joint bundle.

GAGELER J:   I think we might have the wrong Hot Holdings.  It came here a couple of times, so bear with me.

KIEFEL CJ:   Yes, we have got 210 CLR as our ‑ ‑ ‑

MR GORE:   It is in the joint bundle that we have at the Bar table, commencing at 674.

BELL J:   It is in the joint bundle at 674. 

MR GORE:   Yes.

KIEFEL CJ:   Yes, you are quite right, Mr Gore, thank you.  I had the wrong one. 

MR GORE:   I am sorry, your Honour ‑ ‑ ‑

KIEFEL CJ:   No, it is confusing, as Justice Gageler has pointed out, there are a number of them. 

MR GORE:   That is why I am calling them one and two, we have all made that mistake at the Bar table. 

KIEFEL CJ:   So, which page are we at then?

MR GORE:   If I could just retrace steps quickly, your Honour.  I directed the Court’s attention to 679, using the pagination of the bundle, to the terms of section 57(1) of the Act. 

KIEFEL CJ:   I think that is 154 of the Commonwealth Law Reports. 

MR GORE:   Correct, correct.  Then in relevantly identical terms, at page 155 of the Commonwealth Law Report, section 71, which deals with leases, at line 31 and then the relevant jurisprudence is at page 170 of the Commonwealth Law Report, 695 of the joint bundle commencing at line 31 with the heading, “Apparent legal effect”. 

So the plurality referred with approval to the distinction drawn by Chief Justice Malcolm between the existence of the finding and the actual content of the finding, and reinforced the importance of that distinction by saying that the Minister

may grant or refuse to grant whether or not the warden recommended the grant or refusal of the mining tenement. 

So, it is not binding on the – the warden’s recommendation is not binding on the Minister and the statutory structure here is relevantly the same. 

BELL J:   Does the distinction still contemplate that the necessary precondition of the final exercise of power, namely the preliminary finding, is a preliminary finding lawfully made?

MR GORE:   Your Honour, it is probably necessary for me to rely on other authority to answer that question.  If we were confined to the four corners of Hot Holdings (No 1), the judgment is silent on that point.  There would be a basis for inferring that the plurality had in mind that there was no defect.  I could not quarrel with that.  But it is consistent with the second actor theory in the language that it uses, if one adopts the second actor theory as has been propounded later. 

BELL J:   All right.

GAGELER J:   This is a case about certiorari.  I just do not understand how you use it.

MR GORE:   With the distinction that is being drawn, your Honour, between ‑ ‑ ‑

GAGELER J:   Yes.

MR GORE:   It is an analysis in part, as I really said in answer to Justice Bell ‑ it is an analysis in part of the statutory scheme that is similar to the statutory scheme you have got here.

KEANE J:   Mr Gore, is your point that until the recommendation is set aside – as, for example, by certiorari – what the Minister is confronted with is something that on its face looks like a recommendation.

MR GORE:   Correct, your Honour, with respect.  And that was the thrust of what we had submitted to the Court of Appeal, and helps to explain that brief paragraph in the Court of Appeal’s decision in the CAB at page 793, using the pagination of the CAB ‑ really the two sentences:

Nor is it open for this court in this appeal to interfere with the orders made by President Kingham in determining the dispute between the parties.  Those are valid orders of the Land Court and, subject to being set aside on appeal, they bind the parties.

KIEFEL CJ:   And no such order was sought in that court?

MR GORE:   Correct.

KIEFEL CJ:   But it is sought here?  And you say that the appellants seek such an order here?

MR GORE:   But that raises one of those preliminary questions that I identified, your Honour, which is whether ‑ ‑ ‑

KIEFEL CJ:   Yes.  I mean, amongst other things, what your submissions here point up is the need for the appellants not only to seek the orders that were sought under the cross‑appeal before the Court of Appeal, they need to seek the additional orders which the Court of Appeal said they could not make.

MR GORE:   Yes.  And as we submitted to the Court of Appeal, they need to articulate the proper basis for it.

KIEFEL CJ:   Yes, and that was not done at that point.

MR GORE:   That was not done.  And we have seen in the exchanges today that it is still a bit of a moving feast.

KIEFEL CJ:   So if the only orders which could be made here were orders setting aside Justice Bowskill’s orders and remitting it to the Land Court, the question would be what was the Land Court hearing, and what to do with the recommendation which is extant and that would have to depend on any further proceedings which were open to the appellant, but we do not go into that here, whether they are a judicial review, whether there will be issues estoppel.  They are further complexities that we need not go into.  What you say is it is incumbent on the appellant to point out how those other orders can be made.

MR GORE:   Correct, your Honour.  And it is because of those what I will call complicating features that make this not a run‑of‑the‑mill apprehended bias case.

KIEFEL CJ:   So you say, then, it falls back into the discretionary – the first of your major points, that it falls back within the area of a discretion why this Court would not – where the administration of justice would usually require an order to be made, that in these unusual circumstances it would not?

MR GORE:   Your Honour, as we said at the start, the basic questions do overlap so I would not pigeonhole it just into the first question.

KIEFEL CJ:   Yes, quite.

MR GORE:   Just into the discretion.  But what is relevant to the discretion is that second question, which looks at what the status of the second Land Court recommendation is, given that the first one has already been set aside and given these principles.

KIEFEL CJ:   You say it is sufficient that it exists, and it is what it is until set aside.

MR GORE:   Correct.

BELL J:   Mr Gore, you just directed our attention to the Court of Appeal’s reasons.  This was the second set of reasons dealing with the orders that their Honours made at paragraph [17] where their Honours say that it is not open on the proceedings that were before them to interfere with the orders made by President Kingham and their Honours went on to say those are valid orders of the Land Court and subject to being set aside on appeal bind the parties and their Honours then note that there had been no such appeal. 

Of course, there would be no basis for an appeal.  In the proceedings that were before President Kingham, her Honour was acting on the remitter by Justice Bowskill.  The somewhat – the purpose of the challenge that your side mounted was to the validity of Justice Bowskill’s orders bearing in mind her Honour’s conclusion that there was no apprehension of bias tainting the member’s reasons and the contention that you mounted and that you succeeded on. 

So, I have just raised that in a sense, I mean, it may be better to observe that there had – or to rely on the circumstance that no proceeding had been brought to stay the proceedings before President Kingham.  It just seems to me I am not quite sure what the significance of pointing out no one had appealed.  It is not suggested necessarily there was any basis for an appeal. 

MR GORE:   Your Honour’s observations are valid, with respect.  Might I suggest it - the Court’s response to the submissions that we made and which I have invited the Court to read in due course that separate proceedings were necessary ‑ ‑ ‑

BELL J:   I see.

MR GORE:   ‑ ‑ ‑ and that may have been interpreted by the Court of Appeal as comprehending an appeal against President Kingham’s decision.  I do not recall that we ever put that forward as one of the options. 

KIEFEL CJ:   You were talking about judicial review, were you, in accordance with the correspondence?

MR GORE:   Correct, correct.

BELL J:   But those judicial review proceedings would have had to depend upon the proceedings that were before the Court of Appeal because they were proceedings that contemplated, contrary to Justice Bowskill’s finding that, in fact, Member Smith’s reasons were tainted by an apprehension of bias. 

MR GORE:   I do not think we are at cross‑purposes so I will respond by saying it was our contention below and it is in this Court that whilst we are not encouraging further proceedings between these parties, the avenue that the appellant had to follow, we submitted, was to bring judicial review proceedings and they may and, indeed, would have been based in some way on New Acland’s success on the apprehended bias point but how they articulate that that flows through to the subsequent events is where the structure for the relief that the appellant wants is completely lacking.

KIEFEL CJ:   Are you able to go so far as to say there would be no utility to the orders here made limited to setting aside Justice Bowskill’s orders and remitting to the Land Court, no utility because judicial review proceedings are no longer open?  That is probably not a matter which we could rule upon, of course.  Perhaps problematic.

MR GORE:   It would create problems because it would be setting the scene for two sets of recommendations.

KIEFEL CJ:   Well, if the judicial review proceedings were able to be brought and they would of course require that President Kingham be a party to them, they would be proceedings to set aside the recommendation and the delegate’s decision because they hinge upon the exercise of jurisdiction which they say has not been exercised because of a want of procedural fairness.

MR GORE:   Our response to that, your Honour, is that on the best information available to this Court there is a decision of President Kingham and no decision of Mr Smith and it would be wrong to set up a situation where there is the potential for yet a third decision by the Land Court without this Court knowing what is going to happen to the existing second decision of the Land Court.  It would just add so much extra confusion and uncertainty.  It would be wrong in principle, in our submission.

We appreciate that a concern that the Court is likely to have is what is the utility of the declaration as opposed to the more conventional course of remitting for a fresh hearing.  I would like to take your Honours firstly ‑ this is probably the first thing I should do – to the decision of this Court in Ala, which is case 24.  The proper citation is the Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82.

KIEFEL CJ:   Just before you do, Mr Gore, the declaration which was sought and made by the Court of Appeal do you say is likely to have some effect with respect to the appellants were they to bring judicial review proceedings?

MR GORE:   Yes, it would create an issue estoppel or a res judicata. 

GAGELER J:   The issue would go as to the findings as well?  It is expressed in terms of the recommendation, but I think you accept that in answer to an earlier question that I asked that it also finds that the findings are affected by bias. 

MR GORE:   Well, that is the language of the declaration, I think, your Honour. 

GAGELER J:   Yes, all right. 

MR GORE:   I will just double‑check that, if I may.  I withdraw what I said about that being the language of the declaration.  The declaration is that in the relevant decision Mr Smith failed to observe the requirements of procedural fairness, so it is but a short step from that declaration to conclude that the findings are tainted because that is the normal conclusion with apprehended bias.  I accept that, your Honour.  But I emphasise that the appellant has not made good an argument that that, in truth, infects, to borrow its word, the decision of President Kingham.  The jurisprudence that it relies upon for that conclusion is completely lacking. 

GAGELER J:   So, in a subsequent AD(JR) action, challenging President Kingham’s recommendation, you accept that there would arise from declaration 3 an estoppel concerning the issue of whether the findings of Member Smith were affected by apprehended bias? 

MR GORE:   I do, your Honour, and part of the reason is because we say positively that although it is a declaration without precedent, the circumstances are without precedent and to the extent that this Court, or members of this Court in Concrete, emphasised that apprehended bias is fundamental to the administration of justice the declaration is telling the world at large - it is a declaration at large by a superior court which is expressing its disproval of the decision of Member Smith. 

So, whilst it may not be the same outcome that follows in a run of the mill case, the public interest has been served because firstly you have the reasons of the Court of Appeal in CA1 which identify why there was apprehended bias and why the court disapproves of the behaviour of that particular member, so members of the public are able to access that and see what the law says involves apprehended bias in this particular case and in cases that may be like it and that, secondly, that sounds in a declaration by the court which I will describe as a declaration at large, which is sending a message to the public that this is conduct that is disapproved of. 

Now, that is part only of what the Court of Appeal, in our submission, correctly took into account in deciding on that uncommon form of relief.  It was looking for what was best in the interests of justice and in simple terms it had to balance on the one hand the importance to justice of disproving of apprehended bias with, on the other hand, the importance in the public interest in the finality of litigation. 

There would be few cases that have been heard in this country in the last 50 years that would have the length and history of this one.  So the considerations that weighed against a remittal, if there was a discretion, were very powerful because of – to borrow the Court of Appeal’s term in CA1 – “the long and unhappy circumstances of this case”, a powerful consideration, which takes me to ‑ ‑ ‑

KEANE J:   So, Mr Gore, the declaration would have been a signal to the Minister not to treat the recommendation made by Member Smith as a recommendation one way or the other for the purposes of the Minister’s functions in deciding whether or not to grant a mining lease?

MR GORE:   Correct, your Honour.

KEANE J:   It says nothing about what then happens in relation to a recommendation made by President Kingham?

MR GORE:   Because the Minister has the power to refer matters back, whilst it might be – I should not say “might be” – whilst it is plainly making the Minister’s task more onerous than it ordinarily would be, what it does is it tells the Minister to look at each finding individually, to look at the basis of the finding in Member Smith’s decision and, if necessary, to look at the evidence behind it to see whether it is necessary to remit that matter for further consideration.

Our learned friends pointed this Court to what I think they called the vast number of issues that were involved.  No one would suggest that the apprehended bias affected them all.  Not even our learned friends suggest that.  They correctly say that you cannot isolate out the ones that were or were not, but that is where the Minister’s role comes into play.  It might be more onerous than he would like but there will be some that will look straightforward to him where he will be able to say, “That looks acceptable to me.  I think I can act on that.”  But if there is one that makes him pause, he may not act on it.  He may get independent advice or he might remit it.

KEANE J:   Well, sorry, to be a bit more precise, as I should have been, it solves the problem that you adverted to earlier of competing recommendations in the sense that the declaration says the recommendation by Member Smith is affected by want of procedural fairness.  That leaves the recommendation by President Kingham as the only recommendation in the field.

MR GORE:   Yes.

KEANE J:   So that the Minister has the condition precedent to the exercise of the Minister’s power and a recommendation that does not speak with a forked tongue or is not contradicted by another recommendation.

MR GORE:   Yes, your Honour, with respect.

BELL J:   The statutory scheme under the EPA and the MRA is for a recommendation to be made by the Land Court based on objections in the event that there are objections.  So, to the extent that your submission is the declaration served the valuable public purpose of showing curial disapproval of the Land Court making a recommendation in circumstances in which the Member was tainted by the apprehension of bias, nonetheless, you say the interests of finality are such that one is left with the Minister having before him or her a recommendation that has not been based on an unbiased assessment of the objector’s objections and it is then a matter for the Minister or the Chief Executive of the Department of Environment and Science to work out for himself or herself what is appropriate because it is obvious to the public that the objections that were made have not been the subject of a determination by an apparently unbiased court.

MR GORE:   Forgive me, your Honour, are you inviting my particular comment on that?

BELL J:   Well, I am just raising with you that there – to the extent that you suggested the public interest, as it were, in the proper administration of justice is vindicated by the declaration, that might be thought somewhat wanting when to the extent that you emphasise finality you accept that the objections that were made have been determined by a somewhat unsatisfactory process. 

MR GORE:   Your Honour, I do have to say that New Acland, as the party aggrieved, whilst they cannot dictate what the outcome is, as the party aggrieved, that is the party you would be thinking of first, as a court, and not of the appellant.  The points that the appellant succeeded on before Member Smith were ultimately all whittled away except for a modicum of success, but more than a modicum, some real success on restricted noise conditions and the appellant remains completely silent on what it would do about those, it makes no suggestion at all that it would seek to have the more strict noise conditions set aside, and we have pointed out in our submissions that there are doubts about whether you could do that, that the Coordinator‑General could be functus officio, whatever, it is something that has not been fully explored. 

It is sufficient to point out that it is another complication in the whole process and what we argued ultimately by CA2, I accept we have departed from what was said at the time of CA1, was that the appellant was seeking to deploy to its advantage the success that we had obtained whereas what we were seeking to do was persuade the Court that the interests of justice overall were best served by making an uncommon order by not remitting, with another 13 years or 7 years or 5 years, whatever it is going to be, no more of that, thank you very much.  The findings that are strictly speaking affected by apprehended bias nevertheless involved a thorough analysis - it is a very lengthy judgment by Member Smith, and it is a matter now for the Minister and the environmental authority to make individual judgments about how much of that it can take, but starting again is not a sensible option.

That is where Re Refugee Review Tribunal; Ex parte Aala comes into play because this is of more help than our learned friend’s reliance on Bass, which they acknowledge was not a great case for them.  But in Re Refugee Tribunal, which is behind tab 24, it was in a prohibition context in the context of section 75(v) of the Constitution.

If your Honours would go to – this was at page 1100 of the joint bundle, which is page 106 of the CLR, Justices Gaudron and Gummow, in paragraph 51, referred to what Chief Justice Gibbs said in R v Ross‑Jones about the position respecting refusal of prohibition and what Chief Justice Gibbs had said was:

“If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course.”

Justice Kirby also referred to that at page 136 of the CLR, which is page 1130 of the joint bundle, conveniently under a heading before paragraph 145, “The constitutional writs are discretionary”, and with some extra language which we submit by analogy or by parity of reasoning can be applied in the present circumstances.  Your Honours can see at page 137, using the pagination of the CLR, that Sir Harry Gibbs statement from R v Ross‑Jones is referred to, but that is to put in context what Justice Kirby said at paragraph 148 where he said:

The public character of the legal duties which the constitutional writs were designed to uphold means that, ordinarily –

and we emphasise that word “ordinarily”:

they will issue where the preconditions are made out.  But circumstances will occasionally –

and we emphasise that as well:

arise where it is appropriate to withhold the writ because a particularly has been slow to assert its rights -

It gives a couple of examples, but the one that is of some relevance here is:

and where the issue of the writs would involve disproportionate inconvenience and injustice.

Then his Honour went on to refer to Sir Harry Gibb’s statement in R v Ross‑Jones.  So, as we have submitted, by parity of reasoning, that can be applied to a situation like the present.  It is a pretty brave submission that the appellant makes that there is no discretion at all.  Statutes can take away a court’s discretion for murder and things like that, but when a court is exercising its ordinary jurisdiction to say that it has no discretion at all, without any authority at all to support the submission squarely, is too big a submission to make, in our submission.

BELL J:   Let that be so, just if I can take you back to this.  You place very considerable emphasis in the way you put the matter before this Court on the circumstance that the Chief Executive Officer had acted on the recommendation after the Court of Appeal had heard the matter but, nonetheless, at the time your client elected to pursue its cross‑appeal the consequence if successful was, as your client sought, remitter with what you would say the disproportionate outcome of undoing a 100‑day hearing.  I just do not really understand, Mr Gore, how the position is made different?

MR GORE:   Your Honour, is there an element of embarrassment in our changing position?  Yes, there is.

BELL J:   Yes.

MR GORE:   Are we bound by what we said in February 2019?  We respectfully submit no.  The matter was revisited and looked at more carefully, and your Honour will be able to see that from the written submissions that I directed your Honours to at the start of this afternoon’s session, to in effect withdraw from the election, just as the appellant was to withdraw its concession about costs because it has viewed things differently in the light of ongoing consideration, so too for us. 

I accept there is an element of embarrassment there, your Honour.  But does it have a legal consequence that the outcome should be that there is a remittal and to determine that there be a remittal, in our submission your Honour has to look at all of these countervailing considerations.  It is relevant to the discretion, as Mr Kirk had said, but we would submit low in the spectrum of things, not highly satisfactory, but everyone had a chance with the Court of Appeal the second time around to revisit or visit for the first time what orders should be made in the light of the actual decisions that were made and that is what both parties did. 

GAGELER J:   Mr Gore, your proposition that it is sufficient for the MRA and the EPA to have a recommendation in fact, you took us to Hot Holdings.  Is there any other authority that bears on that that we should be aware of?

MR GORE:   Yes.  Yes, there is, your Honour.  The first is Hossain, which is a decision of this Court, a quite recent decision, case 16. 

BELL J:   Could you just repeat the name of that, sorry?

MR GORE:   Hossain, a Bangladesh citizen.

BELL J:   Yes, thank you.

MR GORE:   Could I just foreshadow, your Honour, rather than be suspenseful, that there are three decisions in particular that I want to refer to in this context.  There will be others that I will be referring to, but there are three that are more germane than the others and Hossain is the first.

In the judgment of your Honour the Chief Justice, Justice Gageler and Justice Keane, commencing at 653 of the joint bundle, or page 130 of the CLR, there was a discussion commencing in paragraph 17 about jurisdiction and jurisdictional error.  We respectfully ask the Court to take all of that discussion into account in considering the submissions that we made but in the interests of brevity, given the hour, the key points we would make about the plurality’s decision in Hossain is that the Court recognised - or your Honours, I should say, recognised that these are difficult notions, one should not attempt to reframe things, et cetera, but that does not mean that one should not seek to guide the reader on what jurisdiction and jurisdictional error mean.

In terms of the latter, at 656 in paragraph 24, your Honours go to summary and the sentence that is most directly relevant to the present case is the one that concludes with footnote (26):

A decision made outside jurisdiction is not necessarily to be regarded as a “nullity” in that it remains a decision in fact which may yet have some status in law. 

In footnote (26) there are two authorities referred to - Bhardwaj which is of course well known and Jadwan which is a decision of the Full Court of the Federal Court that is not in your Honours’ bundle but does feature in this second actor notion in one of the other cases that I will be taking your Honours to.  Your Honours concluded in paragraph 27 at pages 133 and 134 of the CLR that essentially the ultimate question is one of statutory construction and your Honour Justice Edelman in separate reasons expressed similar views about the importance of the construction of the statute at paragraph 67 at page 146 of the CLR and paragraph 72 at page 147 of the CLR and we have sought to deal with those construction questions in our written submissions.

The second case is a case of Wintawari which is case 33 in the joint bundle, again another relatively recent decision.  It commences at page – I do not seem to have pagination for the joint bundle - 1372.  I feel what I have done is I have thrown away the joint bundle and kept the one I have been working on - my apologies.  So, if I may use the pagination of the decision itself. 

Your Honours can see that it is a February 2019 decision of Justice Kenneth Martin and it is quite lengthy in its discussion of this point.  I just want to highlight paragraphs that we would ask your Honours to go to.  To understand its relevance it dealt with the Aboriginal Heritage Act which involved a scheme similar to what we are concerned with here, where a recommendation from the Commission was required before the Minister would give his consent for third parties to in effect enter onto the heritage site, and there was a challenge by interested parties in the giving of that consent – it was the Wintawari Guruma Aboriginal Corporation that sought judicial review. 

They had various grounds of judicial – jurisdictional error which are irrelevant for present purposes, but they challenged the Minister’s decision on the basis that the recommendation was tainted by error.  That challenge failed.  Section 18(2), if I may use the pagination of the report at the bottom of the pages, page 19 – bottom of 19, 1382 and then on the next page of section 18(3), which has similar language to our statutes, consider its recommendation and then in paragraph 55 the scene is set for the jurisdictional error.

One really needs to read everything from that point on.  But your Honours will see at paragraph 60 that Bhardwaj is referred to and then in paragraph 61 Jadwan and Hossain, as well as Plaintiff S157, which is another case that features in this area, and Professor Forsyth’s work is referred to in paragraph 69.  This Court’s decision in Hossain is discussed in paragraph 71, more about Professor Forsyth’s work at paragraph 79 and following. 

There is a reference in paragraph 78 to a case that is not in the bundle, Plaintiff M174/2016 where your Honours Justices Gageler and Keane with Justice Nettle made some observations that Justice Kenneth Martin set out in paragraph 78, and perhaps presumptuously in paragraph 83 offered the view that:

Although the second actor has not yet been endorsed by the High Court of Australia, the extract I cited earlier from Plaintiff M174/2016 would suggest that at least in 2018 a plurality of the High Court was highly cognisant of a possible validity significance in administrative law of a decision that is ‘made in fact’.

In paragraph 84 his Honour then referred to a decision of Justice Le Miere in Tulloh, which has since gone on appeal and the appeal decision, which upheld Justice Le Miere’s decision is in the bundle, and it is the third of the cases I was going to take your Honours to.  In terms of that decision, at paragraph 91, this is Justice Le Miere’s decision, Justice Kenneth Martin felt that his brother judge had conveniently synthesised all the case authorities to three case propositions, which were then set out.

Your Honours can see that there is quite a bit of reading here, and I do not want to take the Court’s time.  But it is all in support of the application of the second actor theory to circumstances like the present, and there is a heading to that effect before paragraph 101.  I really ask your Honours to read through to paragraph 124 at page 39.  As I say, there is quite a bit of reading, but it is consistent with the submissions we are making. 

To go quickly to Tulloh’s Case – this will be a lot briefer – it is case 32.  I only wish to direct your Honours to two paragraphs in this decision.  The first is at page 1334 of the joint bundle, which is page 10 of the internet copy of the judgment, where Justice Le Miere’s three propositions that were referred to in Wintawari are set out by the Full Court.  At page 1370 of the joint bundle, in paragraph 134 of the reasons of the court, those three propositions were accepted.

Your Honours, given the importance in at least bygone days of decisions of the superior English courts, I did want to take your Honours to the decision of Boddington v British Transport Police just briefly.  It is case 29, a decision of the House of Lords as it then was.  The principal judgment on this point is that of Lord Steyn whose judgment begins at 165, which is page 1270 of the joint bundle.

The facts of the case are irrelevant.  It was about a recalcitrant smoker who just would not accept that he could not smoke on the train and he was charged and so on.  It is the point of principle that crops up that is relevant.  Lord Steyn, in the context of this notion about – of the validity of acts, in fact, at page 172 of the appeal cases, which is page 1277 of the joint bundle, said at about point 2:

I accept the reality that an unlawful byelaw is a fact and that it may in certain circumstances have legal consequences.  The best explanation that I have seen is by Dr. Forsyth –

and he then set out part of Professor Forsyth’s writings and recorded his view that:

That seems to me a more accurate summary of the law –

than had been developed in an earlier English case.  Lord Hoffmann, at page 176, agreed with Lord Steyn.  That is at page 1281 of the joint bundle.  Lord Browne‑Wilkinson, at page 163, which is page 1268 of the bundle, referred to the judgment of Lord Steyn, with which he agreed.  But he added some observations of his own that we submit are helpful, at page 164, between letters B and D:

But I am far from satisfied that an ultra vires act is incapable of having any legal consequence during the period between the doing of that act and the recognition of its invalidity by the court.  During that period people will have regulated their lives on the basis that the act is valid.  The subsequent recognition of its invalidity cannot rewrite history –

quite colourful language:

as to all the other matters done in the meantime in reliance on its validity.  The status of an unlawful act during the period before it is quashed is a matter of great contention and of great difficulty –

and hence why we are in this Court.  Lord Slynn, on the same page, essentially also agreed with Lord Steyn and added some observations at page165 that are germane to our argument where between letters B and C his Lordship said that:

The unscrambling may produce more serious difficulties than the invalidity.

Your Honours have been provided over the weekend with extracts from the Mineral and Energy Resources (Common Funds) Act and the regulation.  I do not ask your Honours to go to it, but this is separate legislation which deals with the capacity to mortgage and otherwise deal with mineral leases and is relevant to our argument about the inconvenience and uncertainty that is involved.  If you can have, theoretically, an invalid decision by, say, Member Smith, that can be challenged collaterally decades later when in the meantime parties have conducted their affairs, not just the applicant for the mineral lease but funders, and compensation payments have to be made to landowners who are affected and so on. 

We have dealt with the stakeholders in our submissions.  Can I ask your Honours to look in particular in the Act at sections 9(a), 10(a), 16 and 17 and in the regulation at section 4(1)(b) just to get some feel for the scope of dealings that are possible with mineral leases.

Your Honours, I am conscious of the time and I am getting towards the end.  I foreshadowed before lunch that I would deal with what we are calling Hot Holdings (No 2), which was provided to the Court loose.  This is the one in I think 202 CLR.

KIEFEL CJ:   I think 210. 

MR GORE:   Yes, thank you, your Honour.  My apologies.  I have given a paraphrase already of the background but just to highlight some passages that are relevant to the jurisprudence that arises, it is relevant to note that the decision of the Full Court was reversed by this Court.  The Full Court held that it was affected by apprehended bias and in the judgment of Chief Justice Gleeson at page 445 of the CLR, the Chief Justice set the scene for the point that is relevant here in paragraph 12:

The impugned decision was that of the Minister.  But the decision-maker, the Minister, had no pecuniary interest . . . 

The first respondents sought in argument –

This is the party that was ultimately unsuccessful:

to overcome this difficulty by de-personalising the act of decision-making.

It was a view which had found favour with Acting Justice Sheller, with whom the other members of the court below had agreed, and part of Justice Sheller’s reasoning appears in paragraph 15 of Chief Justice Gleeson’s judgment where Acting Justice Sheller expressed the opinion that these circumstances:

give rise to a reasonable apprehension or suspicion on the part of that member of the public that the Minister’s decision was not an impartial one.”

The Chief Justice did not accept that in paragraph 16, concluding that:

the reasoning proceeds on the footing that a decision-maker may act with partiality, or that a decision may be not impartial, although the decision‑maker is personally impartial.

At page 447 in paragraph 20, about 80 per cent of the way through the paragraph, Chief Justice Gleeson deprecated characterisation of the process as “tainted”.  I foreshadowed that we would be relying upon observations to that effect in this decision.

GAGELER J:   How do you rely on them?  What proposition do you draw from this case that you apply to the current case?

MR GORE:   I cannot draw a direct proposition from it, your Honour.  What I can say about it is that it highlights that there are difficulties in a court concluding that a decision is affected by apprehended bias when the decision‑maker itself is not impugned for apprehended bias.  There needs to be some other link, an exchange we had before lunch. 

GAGELER J:   Well, you accept that President Kingham was required to and did rely on findings that are affected by apprehended bias?

MR GORE:   Yes.  Now, that might be able to ground something.  I had an exchange with Justice Edelman about that as well, but it has not been properly articulated by the appellant in any proceedings and this Court should not really give an advisory opinion, as it were, in the guise of dealing with this appeal.  So, I cannot extract a particular proposition from it, your Honour, but it is highlighting that there are gaps in the appellant’s argument. 

Given the exchange we have had I will finish up quickly.  I did want to direct your attention to paragraphs 48 and 49 in the judgment of the plurality where – to borrow some of their language:

It would, of course, be wrong to place too much emphasis on metaphorical references to “infection” or “taint”. 

That sort of statement is relevant to our general submissions, but it is not directly transported.  May I be permitted to repeat a submission made before lunch that neither of the parties with all of their researches has been able to come up with a case in any jurisdiction, be it within our boundaries or – all the different boundaries as well, or from England or Canada or New Zealand, that is remotely similar.  Our basic submissions are that if one returns to first principles, the first principles favour the respondent. 

On the question of costs, we have dealt with that fairly comprehensively in the written submissions.  Your Honours Justices Bell and Gageler will recall that special leave is not granted to appeal against the costs, so they can only get the relief that they seek if they succeed on this.  It is a narrow point really, it might be important, but it is only consequential relief.  To get the orders affecting the decision below is a very high hurdle for them to cross for the reasons we have set out in our submissions.  Unless I can assist your Honours any further, I will do my housekeeping.

KIEFEL CJ:   Do your housekeeping, good to see.  Yes, Mr Kirk.  Thank you, Mr Gore.

MR GORE:   Thank you.

MR KIRK:   Your Honours, I will deal with the points raised by my learned friend essentially in the order in which they were raised.  My learned friend spoke at a couple of points about how long this matter has been going on.  I think he said 13 years – that is a simplification - see the discussion in the first Court of Appeal decision, paragraphs 1 to 19.  It has only been in the court system since 2017, or at least that is when the hearing before Member Smith occurred.  The delays before that were significantly due to NAC itself.

My learned friend said the recommendation of the Land Court is a step in the process, but it is not bound to be accepted.  True, but it is a necessary precondition and a mandatory relevant consideration, and I will come back to that when I deal with Hot Holdings v Creasy (No 1).

My learned friend emphasised a lot before lunch that the catalyst to the substantial change in position was said to be intervening events.  The only relevant intervening event was the decision to grant an environmental authority under the EPA shortly after the hearing on 12 March, as your Honour the Chief Justice has reminded us.  The decision of President Kingham had occurred before that. 

My friend said before lunch, well, it had got 50 per cent of what it wanted.  As at the time of the hearing in the Court of Appeal, the grant of the environmental authority under the EPA was always a foreseeable possibility.  Indeed, to be frank, it was likely.  Your Honours will recall ‑ ‑ ‑ 

KIEFEL CJ:   Would you say that in the context of such a highly political decision?

MR KIRK:   Well, at the least it was a very foreseeable possibility, remembering that the delegate had followed Member Smith’s recommendation, so that at the least there was a very real chance he/she would do the same again as in fact occurred.  The respondent must have weighed that in the balance.  Consider what was being weighed on the other side of the balance.  If my client had succeeded in the appeal, then Member Smith’s decision would have been reinstated and, indeed, that was the effect of the orders sought in the notice of appeal, which is, I think, at page 734 of core appeal book 2.

The bet that they had to consider was do they take that risk or not?  They made an informed, careful, deliberate, conscious decision, after an adjournment, with the benefit of numerable silk, that they thought there was sufficient risk that Member Smith’s decision might be reinstated, i.e. an adverse recommendation, that they take the punt on a cross‑appeal.  That strategic, forensic decision, in their own self‑interest, perfectly legitimate, undermines all of their discretionary complaints as to, well, it is all terribly unfair now that we should be denied the benefit of the bird we had in the hand.  They risked the bird in the hand very deliberately and knowingly.

Some mention was made, too, of the fact that we had not sought a stay in the Court of Appeal.  True, we did seek the adjournment before President Kingham, and they opposed it.  Consistent with their strategy of wanting the bird in the hand but also having another go in the Court of Appeal with the cross‑appeal and it was that inconsistent pursuit of rights which President Sofronoff challenged them on at the beginning of the Court of Appeal.  So, this suggestion that it is all – the sort of cri de coeur that ran through my friend’s submissions, how terribly unfair it all is that the appellant seeks to hold them to the orders they sought, has to be seen in light of the conscious, strategic decision in its own self‑interest that NAC made on the advice of its bevy of advisers.

As to bias, my friend dealt with this before lunch and just at the end there about Holt Holdings v Creasy (No 2) and my friend said both before and after lunch there was nothing remotely similar.  Actually, Hot Holdings v Creasy (No 2) is not too bad. Can I take your Honours back to it? So, this is the one that your Honours might have in loose leaf version. It is 210 CLR 438. Your Honours will recall what it is about from what my friend has taken your Honours to, but can I take your Honours to some other paragraphs, first in Chief Justice Gleeson’s judgment at page 448, paragraph 22:

Procedural unfairness can occur without any personal fault on the part of the decision‑maker. 

Reference to various authority:

But if the form of unfairness alleged is the actuality or the appearance of disqualifying bias, and that is said to result from the conduct or circumstances of a person other than the decision‑maker, then the part played by that other person in relation to the decision will be important.

There is then a reference to a Canadian decision, Baker, where there was a recommendation made by a subordinate officer who was infected by bias and that led to the decision being overturned.  Paragraph 24, the Chief Justice says:

[But] in the present case –

My “but”:

far from having a “central role” akin to that of the subordinate officer in Baker –

the gentleman in question had a role:

that was correctly described . . . as peripheral.

That is the nub of the decision, not that you cannot have one decision infected by the bias of another person, but that here it was peripheral.  Similarly, in the plurality, paragraph 27 about six lines in:

In fact, the “involvement” of the public servant in the preparation of the minute in this case was, at most, peripheral.  For that reason, there was no sufficient factual basis for the submission that certiorari should issue to quash the Minister’s decision.

Then Justice McHugh at page 461, paragraph 72, I invite your Honours to read that paragraph, and we emphasise the last six lines.  The decision of Member Smith did more than influence the decision of President Kingham; it determined it in substantial part.  That statement of principle, with respect, is very directly applicable here.  Finally, Justice Callinan at the last page of the judgment, paragraph 160, his Honour agreed with the plurality and in the third line of paragraph 160:

the involvement of the official in the preparation of the relevant minute was so far out on the periphery of the process . . . that no question of bias . . . could possibly arise.

That decision does not support the respondent’s case.  The discussion of principle supports the appellants.  Your Honour Justice Edelman asked about – in response to something my friend said – the ways in which the case could be put as regards jurisdictional error by President Kingham.  No doubt there are different ways in which it could be put, but the substance is clear.  Through no fault of her Honour’s, President Kingham’s decision is infected with apprehended bias, that is to say that the statutory precondition, which my friend has not suggested in oral submissions, at least, does not apply.  The statutory precondition to a valid exercise of power of according procedural fairness has not been fulfilled.  As I put it before lunch, another way of putting it, the statutory duty of the Land Court remains uncompleted to make what one scheme calls the objections decision.

EDELMAN J:   That duty is a duty not to make a decision that is infected, tainted by any jurisdictional error by any other decision‑maker, or is it a duty not to make a decision that is tainted by apprehended bias by another decision‑maker?  How precisely do you formulate what the jurisdictional error is?

MR KIRK:   The jurisdictional error is that to complete the statutory duty under the EPA and in the MRA there needs to be what the EPA calls an objections decision, neither event a recommendation, being a recommendation addressing all of the mandatory relevant considerations set out in those two Acts and which is not infected by a lack of procedural fairness, including a lack of bias.  Here the decision of President Kingham was infected with a lack of procedural fairness, through no fault of her Honour, for the reasons I sought to articulate.

EDELMAN J:   I understand the submission.  I am just trying to understand how a decision becomes infected.

MR KIRK:   It is infected because there is the statutory precondition which has not been complied with, the statutory precondition that there be a recommendation decision produced, an objections decision produced, which has complied with the requirements of procedural fairness and here no such decision has been produced because the decision of President Kingham is substantially founded, as my friends accept, on the decision of Member Smith, which is infected by bias. 

Perhaps that leads me to make this point, which flowed from some things my learned friend Mr Gore said in response to a question I think from your Honour the Chief Justice about – my friend was suggesting that the decision of President Kingham stands in the way of orders being made here.  Can I make some brief points in response to that?  First, as I put this morning, there can be more than one recommendation on foot and I quoted Chief Justice Gleeson in Bhardwaj to that effect, I think Bhardwaj paragraph 5.  Secondly, it follows as a matter of pure legal logic, in our respectful submission, that President Kingham’s orders and decision is affected by jurisdictional error. 

One does not need an order to that effect.  We do seek it, as I said for clarity and for certainty, but we do not need it.  It is a legal consequence of our submissions, we respectfully say, that it is affected by, infected by, “tainted” by – to use Justice Bowskill’s word – jurisdictional error.  Put another way, the decision that President Kingham cannot stand in the way of relief in this Court because whether or not an order is made it is necessarily invalid, in our submission. 

That that is so is driven home by what my friend accepted in response to questions from your Honour Justice Gageler, and I think also your Honour the Chief Justice.  My friend accepted that the declaration creates, he said, either an issue estoppel or a res judicata on the issue of procedural fairness and he accepted that that extends not only to the recommendation itself, but the findings of Member Smith which bound President Kingham.

That being so, it would be a formality to commence another proceeding and rely upon that issue estoppel or res judicata.  But it is not necessary because it is jurisdictional error.  In any event, if Justice Bowskill’s decision is set aside, that being the very issue before this Court, as I have sought to emphasise, the very issue before the Court of Appeal, then this falls away. 

As your Honour Justice Bell raised, the status of President Kingham’s decision itself depends upon the outcome of this appeal and the cross‑appeal.  The complaint about two sets of recommendations being on foot was always a possible outcome of either the appeal or the cross‑appeal below and that was the point I sought to make by reference to the Court of Appeal’s paragraph [15], where they said if the appellant had won on everything, maybe it would all have been different.

But President Kingham’s decision would still have existed.  It was always implicit in the appeal, after President Kingham had made her decision, that if my client won on the appeal, to get President Kingham’s decision, Member Smith’s decision would be reinstated and, incidentally, the decision of the delegate would have been reinstated because do not forget her Honour set aside the decision of the first delegate, or the first delegate’s decision, I should say.  That would have been reinstated.

Conversely, the logic of the cross-appeal always was, to paraphrase the President in discussions, to go back to square one.  As for Kable (No 2), in that case the authority of the gaoler, to use the term loosely, was provided by giving effect to the order of Justice Levine.  Here, as I put in primary submissions, the Land Court was exercising its own powers.  The remittal orders just confined that task.  Here, unlike Kable (No 2), as I have said a number of times, the very issue before the Court is whether the orders of the Supreme Court should be overturned.

As to the so‑called second actor theory, as with many such labels they put too simplistically tend to confuse rather than to throw light.  It is a bit confused here as to who the second actor is and what the thing in fact was.  First, Mr Gore put it was President Kingham’s decision which, with respect, does not make a lot of sense.  The better view seems to be that the thing in fact was Justice Bowskill’s orders.  As I have said again and again, that is the very thing under appeal.  It is all a bit confused, but it seems to come down to this - construction of the MRA and the EPA and whether the reference to a recommendation decision is a recommendation in fact or a legally efficacious one.

My friend referred to three cases:  Hossain, which does not seem to have much to say about it, with respect; Wintawari and Tulloh, both of which indicate it depends on an exercise of statutory construction, which is plainly right, with respect.  But my learned friend did not really seek then to engage in that exercise of statutory construction vis-à-vis these particular provisions.  But as I took your Honours through this morning, the recommendation decisions under both statutory schemes are a statutory precondition, a mandatory relevant consideration for the final decision‑makers.  As I sought to explain, the very point of that is for an independent and partial tribunal to make an assessment on matters of controversy and advise the decision‑maker.  That is the very thing which has not occurred here.

Hot Holdings v Creasy (No 1) again, does not support the respondent, it supports the appellant.  It is really, as your Honour Justice Gageler put, a decision just about certiorari.  It is following through the logic of Ainsworth, but in Ainsworth they put…..certiorari because the report of the, I think, it was the CJC did not have any legal effect, it had a reputational effect, hence declaration.  In Hot Holdings v Creasy, or I should go back, in Ainsworth, too, if I recollect, in the plurality judgment, there was discussion of it, it may be different, it is a statutory precondition to something else occurring. 

That was then developed in Hot Holdings v Creasy (No 1) where it was a statutory precondition and, thus, certiorari at issue.  That, indeed, is the ratio of Hot Holdings, if one can be old fashioned about it. So, if one goes to volume C3 and the headnote aptly captures it at page 675,185 CLR at 150, the majority held:

that a preliminary decision or recommendation, if it is one which constitutes a condition precedent to an exercise of power that will affect legal rights, will have the requisite legal effect upon rights to attract certiorari. 

That was neatly captured, with respect, by the majority at page 690, page 165 of the CLR:

A preliminary decision or recommendation, if it is one to which regard must be paid by the final decision‑maker, will have the requisite legal effect upon rights to attract certiorari.

Now it is a little bit off to the side because we are not, in a sense, really arguing about the availability of certiorari.  The point is it is a recognition by the law of the importance of these steps.  Now, of course, we all know that sometimes decisions can have significance in law, even if invalid.  The classical case in this area, if I can put it that way, not referred to by my friends, I apologise for not having the reference, is the Lawlor Case where President Brennan, if I recollect correctly – and then, with respect, a powerful Full Court including Justice Deane and I think Chief Justice Bowen - I might be wrong – had to consider the clever argument. 

Well, the Federal Court, if I recollect the argument, cannot hear a – I am trying to remember the exact argument – but it turned on saying if a decision is infected by jurisdictional error, there is no decision to which an appeal under section 43 or 44 of the AAT Act can be brought. The point made by the judges who considered it was that they are the very things that most need correction. So of course when the AAT Act says you can appeal a decision of the AAT, even if it is only a purported decision, that must be picked up because otherwise the scheme makes no sense.

So it is a very good purposive construction, with respect, and followed from time to time in equivalent circumstances.  There is nothing like that here.  The purpose is to the contrary because the purpose, as I have sought to put it, of the Land Court, is to provide an independent, impartial assessment, and that has not been done.  

That leads me to some exchanges my friend had, prompted by something your Honour Justice Keane said about - this is the point about the declaration giving a signal to the Minister.  My learned friend said, well, the Minister can sort of figure out what findings of Member Smith might be infected by bias or not – (a) that is entirely speculative, and (b), the whole decision.  This was a decision‑maker, alas, who was affected by apprehended bias.  You cannot then speculate, we cannot speculate, let alone a minister, let alone a delegate of a chief executive, as to what was or was not. 

It was suggested that leaving the recommendation of President Kingham as the only recommendation in the field is some kind of solution, but that is necessarily incomplete.  The statutory scheme, to go back to the MRA and the EPA, is triggered by objections.  It requires consideration of objections, and then an analysis and a recommendation of those objections and the other related mandatory relevant considerations. 

President Kingham has considered, to simplify slightly, one objection, noise, and not even the findings of fact but the conclusions.  She did a little bit more than that, to be fair, but that is a reasonable simplification.  There is no other recommendation before the Minister or before the delegate addressing all the other panoply of issues which were raised below.  Leaving President Kingham on foot alone is a recognition that the task is incomplete and fundamentally so, in our respectful submission.  My learned friend referred to general principles about discretion ‑ ‑ ‑ 

KEANE J:   But that is because Justice Bowskill made an order confining the exercise that President Kingham was required to perform, so that while it may be true to say that that order that was made by Justice Bowskill might be said to be erroneous because it inappropriately or unlawfully, if you like, confined the function that President Kingham performed, to the extent that one can say that there is a problem with what President Kingham did, it is in obedience to the order of Justice Bowskill. 

One is not saying that Justice Bowskill’s order empowered President Kingham to do what she did.  It is to say that the confinement of the exercise performed by President Kingham was the consequence of the orders of Justice Bowskill and the effect of the order of Justice Bowskill confining what President Kingham did was an order of superior court of record that remained on foot unless and until set aside. 

MR KIRK:   I respond as follows.  First, that your Honour put to me that Justice Bowskill’s order did not empower what occurred, and that was what I was putting to the Court this morning.  That being so, the Kable analogy falls away because the issue in Kable (No 2) was the effect of the order of Justice Levine directly, because that is what had led to the locking up.  Here the issue or part of the issue – and it is only part of the issue – is the status of President Kingham’s decision which was an independent exercise of power.

As to confinement being the consequence, that is, with respect, plainly true, the consequence of the remittal orders.  But as I sought to put this morning and again this afternoon, that is necessarily affected by jurisdictional error in the way I have sought to articulate and in the light of my friend’s concession about issue estoppel or res judicata whether or not - it is a matter of formality whether or not a further proceeding is brought.  That is the legal consequence, at least if your Honour accepts the further point, which I accept my friend does not accept, that the infection of error in Member Smith’s judgment is then transmitted through in the way foreseen in Hot Holdings v Creasy (No 2) to the decision of President Kingham.

KEANE J:   But that was because in Hot Holdings (No 2) there was only one decision and one decision‑maker.  The question was whether the relationship of those who had input into that process was such that one could say that the process had miscarried, that it was tainted or infected.  Here there are two relevant decision‑makers.  There are two people making recommendations.  The idea that one is so influenced by the other has to face up to the fact that the decision made by President Kingham was made on a particular footing brought about by an order of a superior court of record.  There is no question about a jurisdictional error on the part of Justice Bowskill.

MR KIRK:   No, I accept all that and that leads me back, and perhaps I will complete my submissions here, to the core points.  First, the remittal orders of Justice Bowskill are the very orders under appeal.  They were before the Court of Appeal, they are again here.  So as I put, it is circular for my friends to say well, that ends all the debate as to overturning the orders because of something done in consequence of the orders, absent an argument about the Lawlor kind about well, you just need a decision in fact.  Secondly, as I have also put, the task is incomplete.  Yes, your Honour is quite right, with great respect, to say that President Kingham was just doing what the Land Court was directed to do by the Supreme Court, absolutely true.  But it meant she did a tiny bit of the overall task of assessing all the objections.

The remainder of the task had been undertaken by Member Smith, a voluminous job.  That decision is now, for better or worse, found to have

been affected by bias.  In the end, with any such argument, to state the obvious, if you will forgive me, any argument about jurisdictional error or giving effect to the scheme, you come back to the statute.  If you look at the statutory scheme here, there is an important task given to the Land Court as a necessary precondition before these controversial decisions are made, and that includes assessing the objections made and that task has not been done in a way unaffected by significant jurisdictional error.  Unless I can assist your Honours further, they are the submissions for the appellant.

KIEFEL CJ:   Yes, thank you, Mr Kirk.  The Court reserves its decision in this matter and adjourns to 10.00 am tomorrow.

AT 4.10 PM THE MATTER WAS ADJOURNED