Queensland Nickel Pty Ltd and Great Barrier Reef Marine Park Authority

[2014] AATA 935

[2014] AATA 935

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/4496
Re	Queensland Nickel Pty Ltd
APPLICANT
And	Great Barrier Reef Marine Park Authority
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	8 December 2014
Date of written reasons	16 December 2014
Place	Brisbane

The Tribunal DIRECTS that:

1.   If proceedings QUD 255/2014 cannot be heard with this application, this matter remain in abeyance until the hearing of determination of the Federal Court proceedings QUD 255/2014; and

2.   The District Registrar be authorised to refuse to issue the summons in its present form.

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Deputy President P E Hack SC

CATCHWORDS

PRACTICE AND PROCEDURE – summons – Federal Court proceedings – direction that summons not be issued – direction that matter be held in abeyance if cannot be heard with Federal Court proceedings

REASONS FOR DECISION

Deputy President P E Hack SC

16 December 2014

1. In the underlying proceedings, the applicant, Queensland Nickel Pty Ltd, seeks a review of a decision of the respondent, the Great Barrier Reef Marine Park Authority, made on 27 June 2014 by which the Authority’s decision-maker refused a permit to Queensland Nickel.  Expressed as shortly as may be, that permit, if granted, would have permitted Queensland Nickel to maintain a pipeline within the area of the marine park, although that statement cannot be made without qualification, to which I will return. 

2. There are three matters presently before me. One of them concerns a question of legal professional privilege about which I want to give further consideration as to the arguments raised and as to that I will reserve my decision.

3. There are two other aspects.  The first is an application by the Authority for the Tribunal to issue a summons to Queensland Nickel requiring the production of 37 categories of documents.  The second concerns the manner of dealing with the proceedings.  That is relevant because there are currently proceedings on foot in the Federal Court of Australia (QUD 255/2014) between the same parties in which Queensland Nickel puts in issue the Authority’s right to require it to obtain a permit within that particular area of the marine park.  There are, as I understand it, both geographic arguments, that is, whether the pipeline is located within the area of jurisdiction of the Authority or not, and whether it is within power, in any event, for the Authority to require Queensland Nickel to make an application for a permit for the particular use.

4. Those proceedings are, as I say, on foot in the Federal Court and there is a pleading argument set down before a judge of that court in March of next year. The Authority has raised the prospect of this matter and the matter in the Federal Court being heard at the same time by a judicial presidential member. The problem that arises is that the Federal Court proceedings are on the list of Dowsett J who is not a judicial presidential member of the Tribunal.  It is not for me to interfere in the listing arrangements of the Court however I am prepared to communicate to the President and request that he take up with the Chief Justice of the Federal Court whether arrangements could be made within the Court for some adjustment of the lists of the judges of that Court so that this matter could be heard by a judicial presidential member of the Tribunal.  I propose to communicate with the President in those terms. If such an arrangement could be made, that would be an ideal solution where the legal and factual merits of the Authority’s decision, both as to power and as to whether it is the preferable decision on the material, could be determined in a single hearing. 

5. If, however, that is not able to be arranged, it seems to me that it would be preferable, so far as the resources of the parties and the Tribunal are concerned, that the matter remain in abeyance until the question of the Authority’s power to require a permit or not was determined by the Federal Court.  If the Court were to determine that the Authority lacked power, considerable expenditure, public and private resources, would have been wasted if the hearing were conducted in this Tribunal in advance of the Federal Court determining that question.  The result of that part of the matter is that pending hearing from the President as to any discussions with the Chief Justice, I will direct that this matter remain in abeyance until the hearing of determination of Federal Court proceedings, QUD 255/2014. 

6. So far as the summons is concerned, having decided that, it seems to me to make it even more desirable that I direct that the summons in its present form not be issued. If the matter is to proceed in the Tribunal, it would be preferable that some greater attention be paid to the scope of the documents thought to be produced, particularly as well having regard to the material produced by the applicant when it puts on its evidence in due course.  The result of that part of the matter is that I will authorise the District Registrar to refuse to issue the summons in its present form.  As I said, I will reserve my decision on the question of privilege and hopefully give something to the parties in the next couple of days but I will look more closely at the question.

I certify that the preceding 6 (six) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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Associate

Dated 16 December 2014

Date of hearing	8 December 2014
Counsel for the Applicant	Mr L Livingstone
Counsel for the Respondent	Mr G Del Villar