OneSteel Manufacturing Pty Ltd v Environment Protection Authority - [2005] SASC 216

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Civil)
ONESTEEL MANUFACTURING P/L v ENVIRONMENT PROTECTION AUTHORITY & ANOR
Judgment of The Honourable Justice Debelle
15 June 2005
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENTAL, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - PROCEDURE
Joinder – circumstances in which a person will be joined as a party in an appeal to the Environment Resources and Development Court against conditions imposed on environmental licence – held insufficient reasons to make order for joinder - appeal allowed.
Environment Resources and Development Court Act 1993 s 17; Environment Protection Act 1993 s 106, referred to.
Pitt v Environment Resources and Development Court (1995) 66 SASR 274, distinguished.
Robinson v Western Australian Museum (1976) 138 CLR 283; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; Acre Development Pty Ltd v National Companies & Securities Commission (1987) 46 SASR 238; Australian Tape Manufacturers Association Ltd v The Commonwealth (1990) 64 ALJR 530; Right to Life Association (NSW) Inc v Department of Human Services & Health (1995) 56 FCR 50; Tweed Shire Council v Minister Administering the Crown Lands Act (1996) 92 LGERA 80; Defence Coalition Against RCD Inc v Minister for Primary Industries & Energy (1997) 74 FCR 142, considered.

ONESTEEL MANUFACTURING P/L v ENVIRONMENT PROTECTION AUTHORITY & ANOR
[2005] SASC 216
Land and Valuation Division

DEBELLE J. This appeal concerns the circumstances in which a person may be joined as a party to an appeal to the Environment Court under s 106 of the Environment Protection Act 1993.
The appellant OneSteel Manufacturing Pty Ltd (“OneSteel”) operates the Whyalla Steelworks. Its operations are subject to a licence issued by the Environment Protection Authority (“the Authority”). That licence imposes a number of conditions upon the manner in which OneSteel conducts its operations. By letter dated 28 July 2004, the Authority gave OneSteel notice of its intention to vary the conditions of the licence by adding further conditions. The Authority’s stated purpose was to address dust emission from the works operated by OneSteel. After that notice, discussion occurred between OneSteel and the Authority. By letter dated 31 January 2005 the Authority varied the conditions.
Section 106 of the Environment Protection Act provides a right of appeal to the Environment, Resources and Development Court (“the Environment Court”) against a decision of the Authority varying or imposing conditions on a licence. On 1 March 2005 OneSteel appealed to the Environment Court against the added conditions.
The Whyalla Red Dust Action Group Inc (“the Action Group”) applied to the Environment Court to be added as a party to the appeal. The application was made pursuant to s 17 (1) of the Environment Resources and Development Court Act 1993 which provides
(1)The Court may, by order, join a person as a party to any proceedings (other than criminal proceedings).
OneSteel opposed the application. On 23 March 2005, a judge of the Environment Court made an order joining OneSteel as a party. The order did not in any way limit the extent to which the Action Group could participate in the appeal. Pursuant to s 30 of the Environment, Resources and Development Court Act, OneSteel appeals to this Court from the order of the Environment Court joining the Action Group as a party to the appeal.
The Action Group
The Action Group is a non-profit association which was on 17 March 2003 incorporated under the Associations Incorporations Act 1995. The Chairman of the Action Group is Mr E H Kittel. On 22 September 2004 Mr Kittel swore an affidavit in support of an application in another action in the Environment Court. The Action Group relied on the same affidavit to support the Action Group’s application for joinder in this appeal. According to Mr Kittel, the Action Group was formed by residents of East Whyalla concerned about pollution by dust from the pellet plant operated by OneSteel and about other environmental issues involving the Whyalla Steelworks. The Action Group had 40 members in September 2004. Mr Kittel does not identify the 40 members nor where they reside.
Although Mr Kittel states that the Action Group was formed by residents of East Whyalla concerned about pollution by dust from the pellet plant, the objects of the Action Group as stated in Clause 3 of its Constitution are much wider. Clause 3 states the objects to be
a.The protection and enhancement of all aspects of the environment in and around Whyalla;
b.To campaign against industrial pollution in Whyalla;
c.To undertake community education to increase awareness within the community about the environmental impacts of pollution and other local environmental issues;
d.To protect the land in and around Whyalla from inappropriate development;
e.To empower and encourage the community to protect the environment;
f.To promote ecologically sustainable development;
g.To promote public interest environmental litigation;
h.To seek appropriate law reform to improve environmental protection; and
i.To promote links between the association and similar organisations interstate and overseas.
Pollution by red dust is not expressly stated in the objects but would fall under the heading of industrial pollution.
Mr. Kittel deposes to the fact that, in the two or three years before the Action Group was incorporated, residents of East Whyalla, including himself, had formed two unincorporated bodies which were concerned with the issue of dust pollution. They were called “Whyalla Red Dust Victims’ Group” and later the “Whyalla Red Dust Action Group”.
In December 2003 the Action Group commissioned the Environmental Defenders Office (SA) Inc to write a technical report on public health and amenity issues stemming from the particular pollution from the Whyalla Steelworks. The report was distributed to, among others, members of State and Local Government, the Authority, OneSteel and the media. The Action Group invited the relevant Minister in the State Government and Government officials to inspect the pollution it alleges is caused by the steelworks. The invitation has been accepted by Mr John Hill MP, the Minister for Environment and Heritage, Dr Paul Vogel, the Chief Executive Officer of the Authority, and a management team from the Department of Human Services.
According to Mr Kittel, in the two years before September 2004, the Action Group and its predecessors had supplied the Authority with photographs and other material, including many detailed written and verbal reports, in relation to pollution by red dust from the Whyalla Steelworks. Mr Kittel states, and it is not disputed, that the Authority has acknowledged that photographs and reports supplied by the Action Group to the Authority have been instrumental in making the Authority aware of what Mr Kittel calls “the magnitude of the red dust pollution problem”. It appears that the Authority does not have any officers stationed at Whyalla.
Mr Kittel resides some 800 to 900 metres from the pellet plant at the steelworks. He deposes to problems which he says he encounters because of red dust emanating from the pellet plant. It is not necessary for present purposes to set out full particulars of his concerns.
According to Mr Kittel, if the Action Group is joined as a party, it intends to call both lay and expert witnesses on the following topics,
(a)health, amenity and financial impacts of particulate pollution caused by OneSteel;
(b)sources of particulate pollution from the OneSteel plant;
(c)strategies to prevent and reduce the harm caused by particulate pollution; and
(d)such other evidence as is necessary.
Mr Kittel gave oral evidence in support of the application for joinder. His evidence did not add any relevant information to what was stated in his affidavit. He said that the red dust problem continued to exist. He was not cross-examined as to the composition of the membership of the Action Group nor where each member resides.
The Action Group also called Ms Muirden in support of its application for joinder. Ms Muirden described herself as a scientific researcher. She holds a Bachelor of Science Degree, a Bachelors Degree in Veterinary Medicine and Surgery, and a Graduate Diploma in Environmental Management. She is currently completing a Master of Science Degree in Environmental Science at Murdoch University. The Action Group has asked her to examine the impacts of red dust in Whyalla. Since about the middle of 2003 she has been gathering published scientific data, government reports and standards research. She has not herself conducted any research or tests concerning the effects of red dust. She described her work as “a desk study”. She made some general observations concerning the red dust problem and its effects upon health but those remarks were based on her desktop survey.
There was nothing in Mr Kittel’s evidence which indicated that he could add anything to the evidence which might be called by the Authority other than to identify specific incidents. Ms Muirden’s evidence demonstrated that she has done no more than examine published data and reports, all of which presumably are available to the Authority. Certainly, there was nothing in her evidence to suggest that she was in possession of evidence which was not available to the Authority.
In short, the evidence led by the Action Group in support of its application for joinder did not indicate that it was able to add anything of substance to the kind of evidence which might be led by the Authority.
One remarkable feature of the joinder application is that there was no identification of the issues which the Action Group intended to address in this appeal. All that is known is that the Action Group intended to lead evidence on all of the issues identified by Mr Kittel in his affidavit and listed in (a) to (d) above. As that list indicates, the issues are expressed in very general terms. The Action Group was seeking to conduct a broad ranging enquiry into particulate pollution from the operation of the OneSteel plant.
The Judge’s Reasons
When considering the application for joinder, the judge relied on the factors outlined by the Full Court in Pitt v Environment, Resources and Development Court (1995) 66 SASR 274. When deciding to join the Action Group, she said:
I am satisfied on the evidence of Mr Kittel that the nature and strength of the interest of the applicant for joinder is sufficient to warrant joinder in that it is comprised of a group of people directly affected by the subject matter of the variations of the conditions applied from, namely the control of the emission of red dust from the OneSteel plant.
I think there is no impediment to an incorporated association representing a group of residents in that way and being comprised of them. I am satisfied that the applicant can make a valid and useful contribution to the appeal by way of direct evidence at least of what is experienced around the plant in question. I am satisfied that the Environment Protection Authority comes at this matter from a different angle, from Whyalla Red Dust Action Group Inc, namely a more general basis of concern, and that the association that has applied to be joined has a particular basis for concern based on a geographical location.
I don’t think that the proceedings would be unduly prolonged. I bear in mind Mr Henry’s concerns about the scope of this appeal being edged out by the applicant for joinder, but I am satisfied that the applicant for joinder is much more on the basis of the evidence of Mr Kittel, a previously involved person rather than a meddler or busybody and that they have a sincere, general and long-held interest in the subject matter of the licence conditions.
Shortly stated, the judge’s reasons were that the Action Group represents a group of people directly affected by red dust emanating from the Whyalla Steelworks, the Action Group can make a valid and useful contribution to the appeal by giving evidence of what is experienced around the plant, and that the Action Group has a genuine and sincere interest in the subject matter of the licence conditions. She held that the Action Group has a particular basis of concern as opposed to the more general concern of the Authority. In her view, there was no impediment to an incorporated association representing a group of residents in this way. She did not think that the hearing of the appeal would be unduly prolonged if the Action Group was joined.
The judge, therefore, made the order joining the Action Group.
Factors Relevant to Joinder
Section 17 of the Environment, Resources and Development Court Act does not prescribe the grounds upon which an order for joinder will be made. The discretion to join a party is broad and unfettered. However, it is plainly necessary that sufficient grounds exist. If that were not so, any person would be entitled to be a party. As Doyle CJ noted in Pitt v Environment Resources and Development Court (1995) 66 SASR 274 at 276, “joinder will never be made as of course”.
A right of appeal to the Environment Court is provided by a wide variety of statutes each dealing with quite different kinds of issues. It is unlikely, therefore, that there can ever be a rule of universal application by which to determine whether a person should be joined as a party to an appeal. The question of what is a sufficient interest will vary according to the subject matter of the litigation: Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 per Gibbs CJ at 36. The cases are infinitely various and so much depends in a given case on the nature of the relief sought, for what is sufficient interest in one case may be less than sufficient in another: Robinson v Western Australian Museum (1976) 138 CLR 283 per Mason J at 327 – 328. Although these two citations are from cases examining standing in public interest litigation, the principles are, I think, applicable when considering whether a party should be joined to an appeal under s 17 of the Environment, Resources and Development Court Act. Clearly, it will be necessary to have regard to the facts and issues in each appeal.
The reasoning of the Full Court in Pitt v Environment, Resources and Development Court provides some guidance to the criteria to be applied when considering whether to order joinder under s 17. In that case a group of residents in North Adelaide were opposing extensions to a hospital. The residents resided in close proximity to that hospital. The hospital had applied for development consent from the City of Adelaide to make the extensions. The City of Adelaide had received submissions from the residents which included reports of independent consultants. The Council refused to grant development consent. The hospital appealed to the Environment Court. The residents applied to be joined as parties to the appeal pursuant to s 17. The Environment Court refused to join them. That order was reversed by the Full Court on appeal. The Full Court held that the residents should be joined because of their genuine interest in the appeal, the fact that they would be prejudiced by the proposed development, the extent of their involvement in the development application, the nature of the issues they would raise on the appeal and the fact that it was unlikely that their participation would unduly prolong the appeal. In his reasons Doyle CJ made the following observations on the grounds for joinder
The power to make an order for joinder under s 17 involves making a judgment in the light of the facts of the case before the ERD Court. Important factors in any such case will be the nature and strength of the interest of the applicant for joinder in the decision under appeal, the contribution which the applicant for joinder is likely to be able to make to a proper resolution of the issues before the ERD Court and whether the interest which the applicant for joinder represents and the material to be advanced by that person will be adequately dealt with by the parties already before the ERD Court. It will also be appropriate for the ERD Court to consider the impact upon the proceedings of the joinder. The Court can and should consider the interests of the parties before it as of right and the public interest in the prompt and efficient dispatch of proceedings. In addition, of course, there will in each case be other factors particular to the case.
In the present case the law applicable to the resolution of the substantive dispute is the City of Adelaide Development Control Act 1976 (SA). That Act gave the appellants before us no right of appeal and there was no power to join them as party to an appeal. An order for joinder in favour of the appellants necessarily has an effect on proceedings before the ERD Court. The interests represented in the proceedings are no longer confined to the applicant for planning approval and the planning authority. But that is the inevitable consequence of any order for joinder. The potential for such a change in the nature of the proceedings is a necessary consequence of the conferral of the power to join.
In my opinion the impact of an order for joinder upon the proceedings is not a reason for taking a narrow view of the circumstances in which an order for joinder can be made. The test which an applicant for joinder must pass necessarily embraces both the establishment of a sufficient interest and the establishment of factors which make it appropriate to make an order for joinder in the particular case. On this approach, the making of an order for joinder does not mean that a legislative scheme conferring no third party rights for appeal has been converted into a scheme in which such rights are available. The true position is that a third party still cannot institute an appeal, and can be joined only if in the particular circumstances of the case there are factors making it appropriate to do so. Joinder will never be made as of course.
In particular, in my opinion, it is not correct to reason that because an order for joinder permits an involvement in the proceedings which under the City of Adelaide Development Control Act was not permitted, a restrictive approach should be taken to the making of an order for joinder.
I consider that his Honour did take an unduly restrictive approach to the scope of the power which he had. In my opinion his statement that the right to participate must “be limited to special circumstances”, and what he said in explanation of that approach, indicates too narrow an approach to the power. In my opinion his Honour appears to have placed too much emphasis upon the fact that the City of Adelaide Development Control Act did not provide for rights of appeal for third parties or for rights of joinder. It appears to me that his Honour envisaged joinder only in exceptional cases. For the reasons which I have indicated that is not the correct approach. As I have already explained, it would be equally wrong to make an order for joinder simply on the basis of an interest which would give standing for judicial review or an interest which would pass the test for standing approved by the High Court in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493.
Three aspects of those reasons require emphasis. The first is that an order for joinder should not be made simply on the basis of an interest sufficient to give standing for judicial review. Secondly, regard will be had to the nature and strength of the interest in the decision under appeal and to the contribution which the applicant for joinder is likely to make to a proper resolution of the issues. The third is a reflection of the second. It is whether the interest which the applicant for joinder represents and the material to be advanced by that person will be adequately dealt with by the persons already before the court. It is not enough for the party seeking to be joined to say it is able to call evidence. It must be demonstrated that the evidence is the kind of evidence which cannot be adduced by the parties already before the court and that the evidence is relevant to the issues before the court. At the same time, the court should not take an unduly restrictive approach to the question of joinder. The issue should not be approached in a rigid or inflexible manner. It is necessary to note some other factors which bear on the question whether a person should be joined.

It is important to note the fact that a person has an interest in the outcome of the litigation is not, standing alone, sufficient ground to make that person a party. There is no universal rule that an interested party should be joined: Tweed Shire Council v Minister Administering the Crown Lands Act (1996) 92 LGERA 80 at 83. This principle reflects the remarks made by Doyle CJ.
In addition, the mere fact that a person claims to be in a better position to call relevant evidence is insufficient to justify the joinder of that person as a party: Australian Tape Manufacturers Association Ltd v The Commonwealth (1990) 64 ALJR 530 at 532 where Dawson J said:
In the end, all that the applicants are able to demonstrate is that they have an interest in the outcome of the litigation, which I have assumed to be sufficient to support an action of their own, and that they wish to ensure that the case in favour of the validity of the legislation is adequately presented. They maintain that their knowledge and understanding of the factual matters involved are superior to those of the defendant and that their presence as parties in a position to call evidence is necessary for that reason for the effectual and complete adjudication of the question which arises in the action, namely, whether the legislation attacked is beyond the legislative power of the Commonwealth. The applicants do not suggest that, if their application is not successful, they will not make available to the defendant their evidence and expert knowledge for the purpose of advancing the defendant’s case. But even if that were not so, the mere fact that a person claims to be in a better position to call relevant evidence and to make submissions in support of a case which an existing party already seeks to make is plainly insufficient to justify the joinder of that person as a party. However desirable his presence may be to advance the presentation of the existing party’s case, he is not for that reason a person whose presence may be necessary before the court as a party.
The question in that case concerned O 16 r 4 (2) of the High Court Rules which permitted joinder of a party “whose presence before the Court or Justice may be necessary in order to enable the Court or Justice effectually and completely to adjudicate upon and settle all the questions arising” in the action. Dawson J held that that test was not satisfied by a person who claimed to be in a better position to call relevant evidence and to make submissions in support of a case of an existing party to the action. Although the High Court Rule spells out the terms on which joinder might be made, the provisions of that rule are not so restrictive as to have no application in this case. Although the High Court Rule requires that the party may be necessary to enable the determination of issues, it does not, I think, impose a standard higher than that voiced in Pitt. The High Court Rule invests the court with a wide discretion. In many ways, that rule provides a useful test for joinder under s 17 of the Environment, Resources and Development Court Act.
One important factor is the scheme of the particular Act which creates the right of appeal to the Environment Court. Although in Pitt v Environment, Resources and Development Court, the Full Court made an order for joinder notwithstanding the absence of an entitlement of Mr Pitt to be a party to the appeal in the Environment Court, the court did not say that the statutory scheme was not a relevant factor. It will be relevant also to consider both the nature of the appeal and the issue or issues it raises as well as the manner by which the appeal has come to the Environment Court for determination. Often, the appeal will only involve issues as between the appellant and respondent.
It is not a condition of joinder that the person who seeks to be joined is a necessary party: Acre Development Pty Ltd v National Companies & Securities Commission (1987) 46 SASR 238, although plainly if the applicant is a necessary party an order for joinder would in all likelihood be made.
It will always be necessary to bear in mind the rationale for joinder, namely, that multiplicity of proceedings is to be avoided. However, it is unlikely that it will be necessary to have regard to that principle with any frequency in applications for joinder in appeals in the Environment Court. Regard will be had as well as the interests of justice and the due administration of justice.
Some of the appeals to the Environment Court have an element of public interest beyond the immediate interests of the parties to the appeal. That may sometimes be relevant to the question of joinder and assist the applicant. The decision in Pitt is an instance. In this case also there is a broader public interest. The Authority is endeavouring to safeguard the public interest in Whyalla by taking steps to deal with the perceived problem of emissions from the Whyalla Steelworks. However, that public interest does not necessarily entitle a person residing in East Whyalla to be joined as a party. It will be necessary to have regard to the other factors identified above and weigh them to see where the balance lies. In other words, although the issue might affect certain members of the public, this appeal is not public interest litigation in the ordinary sense.
The Statutory Scheme
An important factor in this application for joinder is the statutory scheme and the manner in which the appeal comes to the Environment Court. The Environment Protection Act established the Environment Protection Authority as the body in this State to ensure that all reasonable and practical measures are taken to protect and enhance the quality of the environment. The Act provides for a limited degree only of involvement by members of the public. Members of the public may make representations on environment protection policies: s 28 of the Act. Members of the public may also make representations pursuant to s 39 in respect of an application for an activity for which a permit under the Act is required and, pursuant to s 46 (1), in respect of a proposed variation of conditions attaching to an environmental authorisation issued under the Act. However, the Authority has no obligation to give public notice of a variation or to receive representations if the variation of the conditions of an existing licence does not result in any relaxation of the conditions of that licence: s 46 (4). That is a material factor in this appeal since the variation of the conditions of the OneSteel licence is a tightening of control, not a relaxation of the conditions.
In addition, although members of the public may make representations to the Authority, a person making a representation has no right of appeal against a decision granting an environmental authorisation or the conditions which are attached to that authorisation. In other words, a person making a representation, who believes that the Authority should not have granted the environmental authorisation or that the conditions imposed on that authorisation are inadequate, cannot appeal to the Environment Court. At the risk of repetition, what is of particular relevance in relation to this appeal is the fact that members of the public have no entitlement to be involved in any way when the Authority intends to vary the conditions of an existing licence in a way which does not result in any relaxation of the conditions.
Nevertheless, there is nothing to prevent the Authority from having regard to representations. Indeed, the evidence of Mr Kittel in this case suggests that the Authority does have regard to reports and other information provided to it by the Action Group.
In this case, OneSteel holds an environmental authorisation in the form of a licence. The Authority has varied the conditions of that licence so that OneSteel will be subject to a stricter régime. No member of the public has any entitlement to be involved in that process, no matter how directly that person may be affected by the decision of the Authority. The variation of conditions imposed on an existing environmental authorisation involves different issues from those which arise on the initial grant of the authorisation. The authorised activity is already being conducted. The only issue, therefore, is whether the conditions under which that activity may be conducted should be more restrictive. That involves quite different issues from whether the activities should be authorised at all.
In short, it is the Authority only which the legislation invests with the task of safeguarding the public from a danger resulting from the conduct of authorised activities.
Weighing The Factors
The issues in this appeal are issues between OneSteel and the Authority. The Act provides the Authority with power to impose stricter conditions and the Act states that, if OneSteel is dissatisfied with the variations, it may appeal to the Environment Court. The issues between the Authority and OneSteel are those which stem from the Authority’s notice to vary and from no other source. Neither Mr Kittel nor the Action Group has been involved in that process.
This appeal by OneSteel is an appeal on issues which OneSteel seeks to address. It is entitled to prosecute that appeal in the manner it chooses. It should not have to pursue issues which the Action Group seeks to raise. The issue is not whether other conditions should be attached to the licence but whether the Authority has grounds for varying the conditions. The Notice of Appeal also raises other issues which go to the question of whether the Authority has acted within its statutory powers but they are manifestly issues in which the Action Group has no justifiable interest. In short, this appeal involves issues only between the Authority and OneSteel. While the outcome of the appeal may have consequences for some residents in East Whyalla, this does not in any respect justify the Action Group in being joined.
The decision in Pitt is to be distinguished on at least three grounds. First, the Action Group was not directly involved in the Authority’s decision to vary the conditions as were the residents in Pitt. Secondly, the statutory scheme does not permit public involvement in a variation of conditions which does not relax those conditions. Thirdly and perhaps most importantly, this is a variation of conditions of an existing authorised activity: it is not a decision whether to grant an authorisation for a proposed activity or to extend the operations of the proposed activity.
At best, the Action Group has established that it has an interest which might give it standing to prosecute public interest litigation. It has not demonstrated that it is in a position to call evidence or make a contribution over and above the evidence or contribution of the Authority. It is in no better position to call relevant evidence than the Authority. Indeed, there is nothing to prevent the Authority from calling members of the Action Group who are in a position to give relevant evidence. There was nothing to suggest that the Action Group was in a position to call relevant evidence which could not be called by the Authority or that the joinder of the Action Group was necessary for the proper determination of the issues The observation by the judge of the Environment Court that the Authority “comes from a different angle” from the Action Group does not justify the order for joinder. That observation was made without any satisfactory knowledge of the evidence to be called and without considering whether it was evidence which the Authority might lead.
An applicant for joinder has the onus of satisfying the court that he should be joined. The applicant must, therefore, establish why he must be joined. In some instances, the applicant might intend to limit his participation to named issues. In others, he may wish to address all issues before the court. It is, therefore, necessary for the court to enquire as to the issues which the applicant for joinder proposes to address if joined. The applicant must state whether he intends to call evidence or make submissions and, if so, outline the nature and relevance of that evidence or submissions. The Environment Court failed to examine these questions. It is a matter to be carefully examined on each application for joinder.
The Action Group did not seek in any respect to limit the extent to which it proposed to participate, notwithstanding that some issues concern only OneSteel and the Authority. Instead, the Action Group sought to be involved in the wide issues listed in paras (a) to (d) above. The Environment Court did not impose any limit upon the involvement of the Action Group in the appeal. The joinder of the Action Group has the potential, therefore, to lengthen considerably the hearing of OneSteel’s appeal. This is a further reason for refusing joinder.
For these reasons, when making the order for joinder, the judge in the Environment Court failed to have regard to all relevant factors. The judge also erred on questions of law. The judge failed to examine the statutory scheme and consider the circumstances in which the appeal had arisen. There was no suggestion that the Authority could not or would not call evidence from Mr Kittel and other residents in East Whyalla if their evidence would assist. There was no satisfactory enquiry whether Mr Kittel or others could lead relevant evidence. There was nothing which demonstrated that the Action Group was in a position to assist the determination of the issues in a way which the Authority could not. It is, therefore, necessary to allow the appeal and set aside the decision of the Environment Court for joining the Action Group.
Incorporated Associations
On the hearing of this appeal, a good deal of the argument was addressed to the question whether the Action Group had a sufficient interest to be joined as a party. In the result, it is unnecessary to examine that question. Out of deference to the submissions I add the following.
It is a necessary prerequisite for joinder that the person seeking to be joined has an interest in the proceedings. The nature and strength of that interest might have to be assessed having regard to the terms of the particular Act which gives the Environment Court jurisdiction in each instance. It is unlikely that an interest which would give standing for judicial review is sufficient to warrant joinder under s 17: Pitt v Environment, Resources and Development Court.
An incorporated association does not acquire standing because some of its members possess it: Right to Life Association (NSW) Inc v Department of Human Services & Health (1995) 56 FCR 50 per Lockhart J at 67; Defence Coalition Against RCD Inc v Minister for Primary Industries & Energy (1997) 74 FCR 142 at 150. A related proposition is that a body with particular objects will not strengthen its standing by being incorporated. Thus, it becomes necessary to examine the extent to which members of the incorporated body are affected by the decision the subject of the proceedings in the Environment Court. No detailed enquiry of this kind was undertaken in this case. In his affidavit, Mr Kittel has deposed to the fact that the Action Group represented residents of East Whyalla and that it was formed by residents concerned about dust pollution from the OneSteel Pellet Plant and other environmental issues involving the Whyalla Steelworks. According to Mr Kittel, the applicant had 40 financial members. Those assertions were not challenged in cross-examination. There is, therefore, no basis for not accepting them. However, given the conclusion I have reached it is not necessary to explore the issue further. But, as a general rule, an incorporated association would not have a sufficient interest to warrant joinder under s 17 in an appeal of this kind unless the whole or at least a substantial majority of its members were directly affected by the activity the subject of a proposed or existing licence.
Conclusion
For the reasons expressed above, I allow the appeal and set aside the order of the Environment, Resources and Development Court made on 23 March 2005 joining Whyalla Red Dust Action Group Inc as a party to this appeal.