JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: THE PILBARA INFRASTRUCTURE PTY LTD -v- ECONOMIC REGULATION AUTHORITY [2014] WASC 346
CORAM: EDELMAN J
HEARD: 21 - 22 AUGUST 2014
DELIVERED : 26 SEPTEMBER 2014
FILE NO/S: CIV 2511 of 2013
BETWEEN: THE PILBARA INFRASTRUCTURE PTY LTD
Applicant
AND
ECONOMIC REGULATION AUTHORITY
First RespondentBROCKMAN IRON PTY LTD
Second Respondent
Catchwords:
Administrative law - Need for an application to identify precisely a ground of review - Ultra vires theory of judicial review - Different grounds of jurisdictional error - Characterisation of general assertions of error of law - Relationship between jurisdictional error and error of law on the face of the record - Issues arising in relation to claims of error of law on the face of the record
Administrative law - Jurisdictional facts - Relationship between review of jurisdictional facts and merits review - Whether cost contingencies are a jurisdictional fact in determination of costs by Regulator
Administrative law - Relevant and irrelevant considerations - Requirement that a relevant consideration be mandatory - Whether cost contingencies are a mandatory relevant consideration in 'total costs' - Whether Regulator had regard to an irrelevant consideration of speculative future possibility of use
Administrative law - Unreasonable exercise of a discretion - Whether review based on unreasonableness applies to findings of fact - Distinction between a discretionary decision and a factual determination with a range of possible answers - Whether unreasonableness review of facts is possible in Australian law - Whether Australian law could accommodate the extension - Lack of argument on this issue - Whether issue best left to circumstances where the point is fully argued and where result depends upon it
Administrative law - Procedural fairness - Content of obligation of procedural fairness - Whether the Regulator was required to notify the railway owner of adverse parts of its determination concerning contingencies and economic life - Size of the effect of the approach taken by the Regulator to these two issues
Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Interpretation Act 1984 (WA)
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 (WA)
Railways (Access) Act 1998 (WA)
Railways (Access) Code 2000 (WA)
Result:
Decision of the Economic Regulation Authority quashed
Category: A
Representation:
Counsel:
Applicant: Mr B Dharmananda SC, Mr M J Feutrill & Mr C P K Russell
First Respondent : Mr R M Mitchell SC & Ms R Young
Second Respondent : Mr K J Mony De Kerloy
Solicitors:
Applicant: Allen & Overy
First Respondent : State Solicitor for Western Australia
Second Respondent : Herbert Smith Freehills
Cases referred to in judgment:
Abebe v The Commonwealth [1999] HCA 14; 197 CLR 510
Anisminic v Foreign Compensation Commission [1969] 2 AC 147
Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297
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- Case
- [2014] WASC 346
- Decision Date
CaseChat Overview and Summary
The court addressed these issues by first examining whether the consideration of cost contingencies by the ERA constituted a jurisdictional error. The court found that while cost contingencies were relevant to the determination of costs, they were not mandatory considerations. The court concluded that the ERA's consideration of such contingencies did not amount to a jurisdictional error because it did not involve a disregard of a mandatory consideration. The court also examined whether the ERA's failure to notify the railway owner of adverse parts of its determination concerning contingencies and economic life constituted a breach of procedural fairness. The court found that while procedural fairness generally does not require a decision-maker to disclose mental processes or provisional views before making a final decision, there are circumstances where such disclosure may be required. However, in this case, the court found that the ERA's approach did not result in a significant adverse effect on PI's rights.
The court ultimately found in favour of the ERA, dismissing PI's appeal and affirming the validity of the ERA's decision. The court held that the ERA's consideration of cost contingencies and its failure to notify PI of adverse parts of its determination did not amount to a jurisdictional error or a breach of procedural fairness. The court also found that the ERA's decision was not unreasonable, and that there was no basis for extending the scope of unreasonableness review to include findings of fact. The final orders of the court were that PI's appeal be dismissed, with no orders as to costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Senior counsel for the Regulator submitted that TPI had made a submission to the Regulator that contingencies should be allowed and the rules of procedural fairness would not ordinarily require the Regulator to signal its decision.[229] As a general proposition this can be accepted. Procedural fairness will not ordinarily require a decision maker to disclose mental processes, provisional views or proposed conclusions before a final decision is made.[230] But two points should be emphasised.[229] ts 112 (21 August 2014).[230] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22] (Gleeson CJ, Gummow & Heydon JJ); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 590 ‑ 591 (the Court); OzEpulse Pty Ltd v Minister for Agriculture, Fisheries and Forestry [2007] FCA 1601; (2007) 163 FCR 562, 576 [55] (Emmett J). First, whether procedural fairness will require a decision maker to 'signal' its decision will always depend on the statutory and factual context of the decision. As Murphy JA (Martin CJ and Buss JA agreeing) explained in McKay v Commissioner of Main Roads,[231] the principles of procedural fairness 'ultimately involve matters of degree and judgment' and these principles are not 'susceptible to hard and fast rules'. [231] McKay v Commissioner of Main Roads [2013] WASCA 135 [158]. Secondly, the well‑known principle from which senior counsel cited is subject to equally well-known exceptions. Three related exceptions are as follows:[232][(i)] procedural fairness may require the [decision maker] to hear the parties further if certain matters emerge in the [decision maker's] consideration of the case after trial which the [decision maker] regards as potentially dispositive but in relation to which, in all the circumstances, it is to be inferred that the parties did not have a proper opportunity to address at trial....[(ii)] The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it ...[(iii)] The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material.[232] McKay v Commissioner of Main Roads [2013] WASCA 135 [156] - [157] (Murphy JA, Martin CJ & Buss JA agreeing); Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591 - 592 (the Court). See also Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 [215], [217] (Buss JA, Wheeler JA & Newnes JA agreeing). Although these remarks were made in the context of findings by a trial judge, they also apply generally in the context of administrative decision makers. As senior counsel for the Regulator accepted, a useful (although not definitive) approach is to ask whether the adverse conclusion is one that TPI could reasonably have anticipated.[233] If TPI could reasonably have anticipated the adverse conclusion and if it had the opportunity of dealing with it, then its failure to make submissions or to provide evidence on the point could not permit a conclusion of denial of procedural fairness.