Re Contaminated Sites Committee (Comprised Of the Chairperson, James (Jim) Malcolm And Others)
[2012] WASC 242
•4 JULY 2012
RE CONTAMINATED SITES COMMITTEE (COMPRISED OF THE CHAIRPERSON, JAMES (JIM) MALCOLM AND OTHERS); EX PARTE COFFEY LPM PTY LTD [2012] WASC 242
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 242 | |
| 04/07/2012 | |||
| Case No: | CIV:1979/2012 | 13 JUNE 2012 | |
| Coram: | EM HEENAN J | 13/06/12 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Order to show cause granted | ||
| B | |||
| PDF Version |
| Parties: | COFFEY LPM PTY LTD THE CONTAMINATED SITES COMMITTEE (COMPRISED OF THE CHAIRPERSON, JAMES (JIM) MALCOLM, AND OTHERS) WESFARMERS KLEENHEAT GAS PTY LTD WA SEAFOOD EXPORTERS PTY LTD |
Catchwords: | Certiorari Prohibition Mandamus Judicial review Contaminated Sites Act 2003(WA) Application for order nisi s 37 Notice Demand for oral hearing Procedural fairness Need for identification of alleged unlawful conduct Arguable case Responsibility for remedial action Application for return of order to review before Court of Appeal Order returnable before single Judge Stay of proceedings |
Legislation: | Contaminated Sites Act 2003 (WA) |
Case References: | A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231 Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 411 Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132; 40 ALR 233 BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Brosnan v Meridian Mining Ltd [2011] WASC 43 Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282 Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019 Consolidated Press Holdings v Wheeler (1992) 29 ALD 217; 109 FLR 241 Copperart Pty Ltd v FCT (1993) 30 ALD 377; 26 ATR 327 Copperart Pty Ltd v FCT (1994) 50 FCR 345; 28 ATR 119 Davies v Australian Securities Commission (1995) 59 FCR 221; 131 ALR 295 FAI Insurances Ltd v Winneke (1982) 151 CRL 342; [1982] HCA 26 Hancock v Executive Director of Public Health [2008] WASC 224 Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86 Helton v Allen (1940) 63 CLR 691; [1940] HCA 20 Hill v Green; Young v Buckley [1999] NSWCA 477; (1999) 48 NSWLR 161 Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 McKay v Commissioner of Police [2006] WASC 189 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; 110 ALR 449 Nicholls v Young [1992] 2 VR 209 Re Anstee-Brook; Ex parte Karara Mining Ltd [2012] WASC 129 Re Anstee-Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172 Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264 Saeed v Minister for Immigration and Citizenship 2010 HCA 23; [2010] 241 CLR 252 Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942 South Australia v O'Shea (1987) 163 CLR 378; [1987] HCA 39 Sullivan v Department of Transport (1978) 20 ALR 323 Woodley v Minister for Indigenous Affairs [2009] WASC 251 Wroblewski v Starling [1987] WAR 233 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
Ex Parte Coffey LPM Pty Ltd (ACN 083 014 386)
COFFEY LPM PTY LTD
Applicant
AND
THE CONTAMINATED SITES COMMITTEE (COMPRISED OF THE CHAIRPERSON, JAMES (JIM) MALCOLM, AND OTHERS)
First Defendant
WESFARMERS KLEENHEAT GAS PTY LTD
Second Respondent
- WA SEAFOOD EXPORTERS PTY LTD
Third Respondent
Catchwords:
Certiorari - Prohibition - Mandamus - Judicial review - Contaminated Sites Act 2003(WA) - Application for order nisi - s 37 Notice - Demand for oral hearing - Procedural fairness - Need for identification of alleged unlawful conduct - Arguable case - Responsibility for remedial action - Application for return of order to review before Court of Appeal - Order returnable before single Judge - Stay of proceedings
Legislation:
Contaminated Sites Act 2003 (WA)
Result:
Order to show cause granted
Category: B
Representation:
Counsel:
Applicant : Dr J T Schoombee
First Defendant : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Solicitors:
Applicant : SRB Legal
First Defendant : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Case(s) referred to in judgment(s):
A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500
Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57
Apache Northwest Pty Ltd v Agostini (No 2) [2009] WASCA 231
Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 411
Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132; 40 ALR 233
BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Brosnan v Meridian Mining Ltd [2011] WASC 43
Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282
Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019
Consolidated Press Holdings v Wheeler (1992) 29 ALD 217; 109 FLR 241
Copperart Pty Ltd v FCT (1993) 30 ALD 377; 26 ATR 327
Copperart Pty Ltd v FCT (1994) 50 FCR 345; 28 ATR 119
Davies v Australian Securities Commission (1995) 59 FCR 221; 131 ALR 295
FAI Insurances Ltd v Winneke (1982) 151 CRL 342; [1982] HCA 26
Hancock v Executive Director of Public Health [2008] WASC 224
Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86
Helton v Allen (1940) 63 CLR 691; [1940] HCA 20
Hill v Green; Young v Buckley [1999] NSWCA 477; (1999) 48 NSWLR 161
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
McKay v Commissioner of Police [2006] WASC 189
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; 110 ALR 449
Nicholls v Young [1992] 2 VR 209
Re Anstee-Brook; Ex parte Karara Mining Ltd [2012] WASC 129
Re Anstee-Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172
Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264
Saeed v Minister for Immigration and Citizenship 2010 HCA 23; [2010] 241 CLR 252
Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942
(Page 4)
South Australia v O'Shea (1987) 163 CLR 378; [1987] HCA 39
Sullivan v Department of Transport (1978) 20 ALR 323
Woodley v Minister for Indigenous Affairs [2009] WASC 251
Wroblewski v Starling [1987] WAR 233
(Page 5)
1 EM HEENAN J: On 21 March 2012 the Contaminated Sites Committee sent a notice under s 37 of the Contaminated Sites Act 2003 (WA) to Coffey Environments Pty Ltd, reciting that it reasonably suspects that the contamination present on the site situate and known as 7 (lot 152) Hutton Street, Osborne Park, was caused or contributed to by damage to an unleaded fill pipe on 18 August 2004 and that having regard to other matters recited in the notice the Committee proposes to decide that the following parties are responsible for remediation required to be carried out to the site to the extent indicated:
Coffey International Ltd 70%
Wesfarmers Kleenheat Gas RY Ltd 15%
WA Seafood Exporters Pty Ltd 15%
Caltex Australia Petroleum RY Ltd 0%
2 This notice was addressed by the first respondent to Coffey Environments Pty Ltd although, as stated, it asserted that it was Coffey International Ltd responsible for 70% for the remediation required. No issue has yet emerged as to whether the present applicant, Coffey LPM Pty Ltd, is the recipient of the notice or the entity alleged to be responsible for the required remediation and the application has proceeded on the assumption that the applicant has a sufficient interest to bring these proceedings. That may or may not be contestable but for the present I consider it is appropriate to assume that it has.
3 This notice from the first respondent includes the following paragraphs:
The shares of responsibility outlined in the above table may be changed in response to submissions received in accordance with the provisions of s 37 of the Act. Under s 37 of the Act, if you disagree with any of the statements made in this notice (including the Attachments) you may, on or before 4 pm on 26 April 2012, make a written submission to the Committee:
(i) specifying any statement that you disagree with;
(ii) giving reasons as to why you disagree with the statements; and
(iii) providing any information or documents supporting the reasons given.
As such submissions may contain aspects of a legal nature you may need to obtain the independent legal advice of solicitors to assist in the preparation of the submission.
(Page 6)
- The Committee will make its final decision in relation to this matter no sooner than the expiration of six weeks from the date of this letter.
4 By a notice of originating motion of 1 June 2012 Coffey LPM Pty Ltd, seeks orders for the respondents to show cause before the Court of Appeal why a writ of certiorari should not be granted to quash the notice of 21 March 2012; why a writ of prohibition should not be granted prohibiting the first respondent from relying on the notice and proceeding to any decision under s 39 of the Act in reliance upon that notice; and why a writ of mandamus should not be granted requiring the first respondent to conduct a further investigation in relation to the responsibility for the contamination of the site and to conduct an oral hearing in the course of doing so to allow interested persons to question the makers of statements supplied to the first respondent on relevant identified matters.
5 The notice of motion also seeks orders for the first respondent to show cause why a writ of mandamus requiring the performance of further alleged obligations by the first respondent should not issue, alternatively for a writ of prohibition in further terms, alternatively for further or alternative relief including a declaration or declarations. The applicant also seeks an order for the stay of any decision-making by the first respondent pending determination of the final relief sought by the application or until further order of the court.
6 In short, the applicant seeks an order to show cause why prerogative remedies, certiorari, prohibition and mandamus, and other remedies including a declaration should not be granted to quash the notice, prevent any further action upon it, and to compel the first respondent to adopt a procedure for the determination of the allocation of responsibility for remediation on the site in a fashion which will accord what the applicant claims is procedural fairness to it. The application for the different forms of prerogative and other relief and for a stay relies upon the provisions of Rules of the Supreme Court O 56 r 1 - 3.
Notice to respondents
7 The present application was listed and conducted on an ex parte basis. Nevertheless, notice of the application had been given to each of the respondents. A notice of intention to abide by the decision of the court has been filed on behalf of the first respondent. The position taken by the second and third respondents is that they have each simply observed the proceedings so far but expect to enter appearances if an order to review is granted.
(Page 7)
Background
8 The site which is the subject of the notice is located at the north-west corner of Hutton and Howe Streets, Osborne Park, and is identified in a map which appears at page 306 of the annexures to the affidavit of Mr W McFerran sworn 1 June 2012. It is more fully described as lot 152 on plan 2849 comprising certificate of title vol 1805 folio 993 and known as 7 Hutton Street, Osborne Park. At the time of the Notice it was owned by WA Seafood Exporters Pty Ltd - the third respondent. Over a history stretching back to before 1999 it was operated as a petrol and fuel service station and associated motor vehicle workshop by various tenants who had leased the land from the owner. These tenants were, in order of occupation, Caltex Australia Petroleum Pty Ltd from before 1999 until late 1999; then Wesfarmers Kleenheat Gas Pty Ltd, the second respondent, from 1999 to about 2004; and then from 2004 until the present one or more of the companies in the MPL group, including the applicant, Coffey LPM Pty Ltd.
9 Page 305 of the annexures to the affidavit of Mr McFerran contains a plan of the service station and workshops on the site. This plan also shows, as marked variously from SB01 to SB12, the sites of various drill holes which were made in order to test whether or not the site was contaminated by fuel, oils or other contaminants emanating from the use and operation of the service station. The evidence is that this drilling was conducted in August 2004 by the applicant or by an associated company which had been engaged by the second respondent, Wesfarmers Kleenheat Gas Pty Ltd, to carry out the drilling in order to determine whether or not the site was contaminated. One of the results of this drilling was that petroleum contamination was discovered in the subsoil of the site in drill hole SB11. Pollution was also discovered in drill hole SB08.
10 As a result of this discovery, further investigations were conducted in 2005, leading to an underground fuel pipe near the site of drill hole SB11 being uncovered and dug up in order to determine, if possible, whether it might be the source of the contamination which had been revealed by that drill hole. This investigation revealed that this particular pipeline showed signs of damage and was apparently a site, if not the site, of the contamination which had been earlier detected near that point. Furthermore, this investigation revealed that this particular pipe was damaged in such a way that fuel, oil or other contaminants were continuing to leak from it and would continue to do so until the pipe was repaired or replaced.
(Page 8)
11 In what has since become a matter of major controversy, opinions were then formed and eventually conclusions drawn that the damage to this pipeline, or at least a major part of it, was caused by the drilling conducted in 2004, by or on behalf of the applicant or its associated company, at the request of the second respondent. This is controversial because the applicant has maintained at all times that it was impossible for the fuel pipeline to be damaged in the way suggested because the test drilling which it conducted in 2004 was done by a hand auger which, for a variety of reasons, the applicant contends did not and could not have caused the damage observed. By contrast, the second respondent, and some of the various advisors and consultants since employed, have expressed the view that the damage was done by drilling, although there are some suggestions in these reports that this conclusion was based on an erroneous assumption that a mechanical or power drill machine was used in the 2004 investigative drilling operation. This controversy over how the fractured fuel line near the site of drill hole SB11 was so damaged has remained, at least from the perspective of the applicant, an important and unresolved question.
12 In or about September 2008 the third respondent, as owner of the site, acting under s 11 of the Contaminated Sites Act 2003 reported to the CEO of the Department that lot 7 was a contaminated site. That led to the site being classified by the CEO under s 13 of the Act and, in due course, notification of the classification was given to interested persons as required by s 15(1). The classification given to the site was 'contaminated - remediation required', see s 15(3) and s 15(4). No appeal against that classification was instituted by any person under s 18 or otherwise.
13 One of the consequences of this classification was that some person or persons would become responsible for the remediation of the site - s 22 and s 23. The legislation provides for a hierarchy of responsibility for those responsible for remediation, s 24, but in the present case the approach taken to the identification of the person or persons responsible for remediation is that identified by s 25. That section provides:
25 Person who caused, or contributed to, contamination - responsibility for remediation
(1) A person is responsible for remediation of a site to the extent that the person caused, or contributed to, the contamination of the site after the commencement of this Act.
- (2) Subsection (1) applies whether the contamination resulted from an act that was done with lawful authority or without lawful authority.
(3) A person who caused, or contributed to, the contamination of a site before the commencement of this Act is responsible for remediation of the site only to the extent that the person caused, or contributed to, that contamination by an act that was done without lawful authority.
(4) This section does not apply if the contamination resulted from a reasonable act that was carried out in an emergency situation to save life or to protect property or the environment.
(5) In this section -
"an act that was done without lawful authority", without limiting the meaning of the expression, includes an act -
(a) that constituted an offence for which the person was convicted; or
(b) that contravened -
(i) any written law in force at the time the act occurred; or
(ii) any contract, permit, lease, licence, standard, policy, direction, exemption, authority, approval or requirement, however described, that was given or made under a written law in force at the time the act occurred.
14 The Contaminated Sites Act 2003 first commenced operation on 1 December 2006 (see s 2 and the compilation table at page 91 of the February 2007 reprint). The 2003 Act had been amended several times before then but there has been no suggestion, at least so far, that any of those amendments is material. Accordingly, as this contamination was discovered first by the investigative drilling carried out in 2004 and then by the isolation and inspection of the damaged subterranean fuel pipeline in 2005, it becomes apparent that the responsibility for the remediation of the contamination is determinable by the application of s 25(3) of the Act.
(Page 10)
15 The power and obligation to make decisions as to the responsibility for the remediation of a contaminated site rests upon the Committee which is established by s 33 and which is named as the first respondent to this application. That responsibility is imposed by s 36, which requires the committee to make decisions as to who is responsible for remediation of a site and the extent to which a person is, or persons are, responsible for remediation of a site. The committee may make such a decision or decisions if requested to do so by an interested person and also on its own initiative.
16 The procedure leading to a decision by the Committee as to the responsibility for remediation of a site or the extent to which a person or persons are responsible for such remediation is a two-stage process prescribed by s 37 to s 39 of the Act. The first stage of the process is for the Committee to form a preliminary view of a proposed decision based on reasonable suspicion as to the nature of the contamination and the extent to which any person has caused or contributed to that contamination. The Committee must then give notice of its proposed decision and the act of any person it reasonably suspects of having caused or contributed to the contamination to that person. This notice (the s 37 Notice) must provide further information and details as required by s 37(b), (c) and (d). This is then followed by an opportunity for a person or persons so informed by the s 37 notice of the decision or decisions proposed to be made by the Committee to disagree with any statements made in the notice and to make written submissions to the Committee in response (s 37(e)).
17 The second stage of the process for the Committee to reach a decision about the responsibility for remediation occurs after the person or persons who have received the s 37 notice have made submissions or after the expiration of the time specified for the making of submissions. This second stage in which the final decision by the committee is reached is prescribed by s 38 of the Act in these terms:
38. Matters to be taken into account in making a decision as to responsibility for remediation
(1) A decision as to responsibility for remediation is to be made in accordance with Division 1 and the section which empowers the decision to be made.
(2) In making a decision as to responsibility for remediation the committee is to take into consideration -
- (a) the contents of any notice given by the committee under section 37; and
(b) any submission made to the committee referred to in section 37(e) and any information or documents provided in support of the reasons given in that submission,
- and may take into consideration any other matters the committee considers relevant.
18 Once such a final decision is reached by the Committee, notice of it is required to be given in writing to each person who the Committee has decided is responsible for remediation and others, including any interested person within the meaning of s 36(3).
19 The requirements for such a notice under s 39 are contained in s 39(2) as follows:
(2) A notice given under subsection (1) is to -
(a) specify who is responsible for remediation and the extent of the responsibility;
(b) specify the section of the Act under which the decision is made;
(c) specify the reasons for the decision;
(d) contain details of the appeal available in respect of the decision under section 77; and
(e) contain any other details prescribed.
(3) A notice given under subsection (1) has effect according to its tenor.
20 A right of appeal from the decision by the Committee as to responsibility for remediation given under s 38 and s 39 is provided by s 40 and the appeal must be in accordance with s 77. That latter section provides that a party aggrieved by a decision of the Committee referred to under s 40 (or under other sections) may appeal to the Supreme Court on a question of law within a 21-day time limit after the notice or certificate was given and that no appeal lies against a decision of the Committee under s 40 except on a question of law.
21 Once a decision as to responsibility for remediation is made, unless varied or set aside on appeal under s 40, a person determined to be
(Page 12)
- responsible for remediation may become obliged to carry out the remediation necessary at his or her expense - s 43 - and if there is a failure to do so will become liable to civil action for the cost of having the remediation done - s 53 and s 55 - and/or to fines or penalties for failing to comply with the notice of decision - s 43.
The present case
22 This application for prerogative or judicial review of the notice issued by the Committee can, therefore, be instantly recognised as having been made at the completion of the first phase of the decision making process by the Committee; that is, upon the issue of a notice under s 37 and before any final decision has been made by the Committee under s 38. It has also been brought in circumstances where no written submissions have been made by the applicant to the Committee under s 37(e) but the applicant submits that such are the alleged defects in the s 37 notice that it is unable to make adequate written submissions. The applicant contends that, in any event, the requirements of procedural fairness in the present case call for an opportunity to be given for the applicant to make oral submissions to the Committee before the issue of the s 37 notice. The applicant also submits that it should be entitled to participate in a further inspection or examination of the fractured pipeline discovered adjacent to drill hole SB11 which is needed to investigate properly and eventually to determine what it contends is the unresolved dispute over the cause and responsibility for the fracture to that fuel line. It will be necessary to return to the applicant's submissions concerning the obligation and content of the alleged duty to accord procedural fairness in these respects.
23 The applicant has never been charged with or convicted of any act done on or in respect of the site without lawful authority as referred to in s 25(5)(a). Accordingly, it submits the responsibility and extent of the obligation for remediation of this site is to be determined solely by the application of s 25(3) and (5). In the language of the statute the applicant would be 'responsible for remediation of the site only to the extent that [it] caused or contributed to that contamination by an act that was done without lawful authority' and, for an act to be one done without lawful authority it would need to be an act which contravened any written law in force at the time the act occurred (s 26(5)(b)(i)) or an act which contravened any contract, permit, lease, licence, etcetera, however described, that was given or made under a written law in force at the time the act occurred (s 25(5)(b)(ii).
(Page 13)
24 The applicants also submit that the s 37 notice which has issued is defective and should be quashed because, among other things, it fails to address these bases essential for any finding of responsibility for remediation under s 25(3) as it is required to do by s 37(b). That subsection provides:
37. Notice to be given before decision made
Before making a decision as to responsibility for remediation in respect of a person, the committee is to give written notice to that person -
(a) …
(b) if the decision is proposed to be made in accordance with s 25(3), specifying the act that the committee reasonably suspects that the person carried out without lawful authority and giving details of -
(i) the conviction of the person for the offence that was constituted by the act; or
(ii) any contravention described in paragraph (b) of the definition of 'an act that was done without lawful authority' in section 25(5);
…
(d) setting out any other matters regarding responsibility for remediation that are relevant.
25 Over a period of almost four years, apparently commencing on or about 8 September 2008, when the third respondent gave notice to the first respondent that there was contamination on this site, the first respondent has been conducting investigations and enquiries with a view to determining the nature, extent, cause and responsibility for this contamination.
26 In this regard, the first respondent has asserted, in its correspondence, that it has been acting pursuant to its statutory powers, although that correspondence has not, either expressly or comprehensively, attempted to identify those powers. There is power under s 14 for the CEO to enquire into a report that a site is contaminated as part of the role of classifying the site. The CEO is also required to keep accurate and up-to-date records relating to a contaminated site, including
(Page 14)
- all the various matters identified in s 20(1). When making any decision under the Act the Committee is required to consult the CEO and may consult any other person it considers necessary to consult and is to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, is not bound by the rules of evidence, and is to conduct its enquiries in any manner it considers appropriate (s 34).
27 This prescribed procedure of the first respondent applies to any decision which it makes under the Act and, therefore, to the decision which the Committee eventually may make under s 38 concerning responsibility for remediation. Whether the decision to issue a notice under s 37 by the Committee specifying the nature of contamination that the Committee reasonably suspects that the person or persons notified caused or contributed to and the extent of the contamination that the Committee reasonably suspects that that person or persons caused or contributed to, is such a decision which must be made in compliance with the procedure identified by s 34 is not expressly stated in the Act. It may be a matter of controversy in these proceedings and may or may not need to be determined for the resolution of them. It is not appropriate to express any view about the determination of that particular question on an ex parte application but it is necessary to flag its potential significance. So far as the correspondence to which I have been referred is concerned, and implicit in the submissions advanced on behalf of the applicant, it seems to be contended that the issue of a s 37 notice is a decision by the Committee which requires compliance with the s 34 procedure but, as I say, that assumption may or may not yet need to be determined in these proceedings.
28 Since the reporting of contamination on this site there have been very extensive investigations and enquiries made by the first respondent and by the applicant and second and third respondents into the nature, cause and responsibility for the contamination. The affidavit evidence includes a copious quantity of correspondence, reports, submissions, expert opinions, answering submissions and contentions and the like relating to those questions. As the chairman of the first respondent put it in a letter to the solicitors for the applicant dated 7 May 2001:
An application for a determination on responsibility was lodged by WA Seafood Exporters in 2008. The application was accompanied by substantial documentation. Submissions were received from other parties and these gave rise to additional information that was again referred to all parties, including Coffey Environmental Pty Ltd for comment. There were
(Page 15)
- several rounds of comment and response over the last four years and various new reports were submitted and circulated for comment.
It was not until this exchange of documents (or consultation) was complete that the Contaminated Sites Committee (Committee) proceeded to its preliminary consideration of the matter and to issue the notice under s 37 of the Contaminated Sites Act 2004 (Act) which is designed to allow further response before a final determination is made by the Committee.
29 In that letter the chairman of the first respondent also referred to the powers of the Committee under s 34 of the Act to consult with any other person is considers necessary and to conduct its enquiries in any manner it considers appropriate. The chairman then wrote:
The Committee considers matters within its remit on the basis of the available documents and information and as described above, circulates that material (including responses) to potentially affected parties. Accordingly, the Committee's procedures accord procedural fairness to any person who might be the subject of a decision as to responsibility for remediation. The Act provides an opportunity for all potentially affected parties to make submissions on the s 37 notice. Consistent with procedural fairness, the Committee has adopted the practice of circulating these responses so that each of the parties may respond to any new matters raised in the submissions of the other parties before a final decision is made under s 39 of the Act …
30 The applicant acknowledges that it participated in this lengthy exchange of evidentiary statements and submissions over a period of 3 1/2 years, including the exchange of expert evidence about the probable causes of contamination on the site and that the parties to this investigation included the applicant, the second and third respondents and Caltex Australia Petroleum Pty Ltd. It is evident from the affidavit of Mr W McFerran, sworn 1 June 2012 on behalf of the applicant, that the applicant maintains that the various investigations and reports do not establish, or do not sufficiently establish that:
(a) the applicant when conducting bore hole drilling work on the site on 17 August 2004 caused the alleged or any damage to an underground unleaded petroleum pipe by the use of the hand-held auger then employed or at all;
(b) neither then, nor at any later stage, did the applicant cause any damage to the pipe and elbow of that unleaded petroleum pipe either in the course of drilling or in later attempts to repair that pipeline;
(Page 16)
- (c) the applicant did not, as alleged, whether by either of the actions referred to in sub-paragraphs (a) or (b) or otherwise, commit any contravention of s 49(3) of the Environmental Protection Act as alleged or at all, nor did it commit any breach of s 49(3) of the Environmental Protection Act as alleged or at all.
31 Further, notwithstanding its denial of any breach of the provisions of the Environmental Protection Act 1986 as alleged or implied by the first respondent, the applicant maintains that no consideration has been given by the Committee to the question of whether or not, if any such damage did, in fact, occur, it was the result of an accident so that no criminal responsibility could attach to the applicant by reason of s 24 of the Criminal Code with the further consequence that no such contravention of the Environmental Protection Act 1986 had occurred or could reasonably be suspected of having had occurred. This contention is advanced by the applicant on the basis that the exploratory drilling which was conducted by the applicant in August 2004 was done on a basis of mapping supplied to it showing the location of all the subterranean tanks, pipes and associated equipment.
32 Further, the applicant contends that the materials considered by the Committee and referred to in the s 37 Notice show that:
(a) The Committee failed to take into consideration evidence consisting of hydrocarbon fingerprinting results said to establish that contamination discovered in the groundwater wells in November of 2004 was aged between two and six years at that time and hence must have occurred or have been caused before any involvement of the applicant with the site.
(b) There was no reasonable basis for the Committee to suspect that other areas of damage to the unleaded fuel line occurred during the removal of the pipe in April 2005.
(c) The second respondent had experienced substantial fuel losses at the site over a period prior to any presence or involvement of the applicant with the site, which losses remain unexplained and which provide a reasonable basis for concluding that the contamination occurred before the applicant's involvement with the site.
33 In the course of this lengthy investigation into the nature, cause and responsibility of and for contamination of the site, and the exchange of information and reports between the applicant and the respondents, the
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- applicant has contended to the first respondent that the obligations to accord procedural fairness require that there should be a supervised excavation and inspection of the subterranean pipe said to be the source of the contamination and to have been damaged by the applicant in order to determine the unresolved controversy over whether or not the drilling by the applicant in August 2004 caused or could have caused the damage to that pipeline. The applicant has also contended that the requirements of procedural fairness include an obligation by the first respondent to have a proper hearing at which it would be afforded the opportunity to question witnesses, especially the authors of the expert reports the conclusions or recommendations of which are contested, as are the reports to the effect that the particular underground fuel line was damaged by drilling by the applicant in August 2004. The applicant also maintains that the requirements of procedural fairness dictate that reasons should be given by the first respondent for any conclusion to the effect that there are reasonable grounds for suspecting that the applicant has committed any offence or caused or contributed to an act that was done without lawful authority within the meaning of s 25(3) of the Act.
34 Furthermore, the applicant seeks to contend that the s 37 Notice issued by the first respondent is invalid and of no effect because it fails adequately to deal with the matters prescribed by s 25. It is, therefore, necessary to turn to the terms of that notice which are subject to these criticisms by the applicant.
The terms of the s 37 Notice
35 Parts of the s 37 Notice issued by the first respondent on 21 March 2012 under s 37 of the Act have already been set out. It includes the recitation that the MPL Group Pty Ltd, an environmental consultant which conducted investigations on the site, was purchased by Coffey International Ltd (Coffey) in January 2010. The notice recites that Coffey was identified as a person who may be responsible, to some extent, for remediation of the site under the Act.
36 There is an attachment (Attachment 2) to the s 37 Notice listing the large number of documents received by the first respondent relating to the site. Copies of these documents are annexures to the affidavit of Mr McFerran sworn 1 June 2012. The s 37 Notice recites that information from those documents has been assessed by the Committee against soil and groundwater investigation levels adopted by DEC as criteria suitable for Western Australian soil and groundwater conditions. These documents include submissions to the Committee made by the third
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- respondent, the second respondent, by Caltex Australia Petroleum Pty Ltd, by the applicant or other companies within its group, and extensive correspondence between the parties, engineering and environmental assessment reports and many other documents, reports and photographs. The submissions mentioned include several sequential submissions by each of those parties.
37 The s 37 notice then goes on to refer to a further attachment (Attachment 3) which lists six separate periods which the Committee has identified and into which the history of the subject site has been divided. These give the date of each period and identify the relevant changes in the ownership, occupational use of the site and identify the parties involved in each period. The six enumerated periods are:
1. From 27 July 1988 to 31 July 1999.
2. From 1 August 1999 to 31 July 2004.
3. From 1 August 2004 to 17 August 2004.
4. From 18 August 2004 to 8 April 2005.
5. From 9 April 2005 to 23 August 2006.
6. From 24 August 2006 to undefined.
38 Significantly, for present purposes, the fourth period (from 18 August 2004 to 8 April 2005) is identified as the period during which MPL is suspected of having damaged a fuel tank line. Attachment 3 contains subscripts which include the observations that significant events so listed have been identified from specified documents in attachment 3.
39 Period 4, the period relating to the alleged damage of the fuel tank fill line by MPL is said to be identified by documents 1.4 and 17.1 in Attachment 2. Those documents are, respectively, the 'pollutant statement of claim regarding on site fuel pollution sourced from WASE' and 'Stage II environmental site assessment - Wesfarmers Kleenheat Quick-Fuel service station, corner of Howe and Hutton Streets, Osborne Park, WA'. The first of those documents is at pages 14 to 32 of the annexures to the affidavit of Mr McFerran and is a report by Hydrocarbon Remedial Services Pty Ltd which had been commissioned by the third respondent to review past environmental pollutant reports relating to the site. This recites a long and contentious history over the source, timing and cause of the pollution and includes a criticism of the methodology adopted by the exploratory drilling system carried out by MPL. Then because of the timing and nature and extent of pollution discovered 22 days later, the HRS report advances a circumstantial argument that it was the drilling by
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- the applicant's associated company which caused damage to an underground pipe and the pollution. This report includes the assertion at par 5.0(2) that:
MPL accidentally and without intention damaged the remote fill line to the unleaded tank in two separate locations each the size of a 20 cent piece, each located on the side wall.
41 Document 17.1, identified by the Committee in Attachment 3, is to be found at pages 1157 to 1206 of the affidavit of Mr McFerran and is a report entitled Stage II Environmental Site Assessment - Wesfarmers Kleenheat Quick-Fuel Service Station, Corner of Howe and Hutton Streets, Osborne Park' prepared for the second respondent by MPL Health.Safety.Environment in October 2004. This refers (par 4.1.1) to a soil sampling programme undertaken by manual sampling techniques (hand auger) for samples collected at depths at or shallower than 4.0 metres bgl (below ground level). The report makes reference to these tests discovering petroleum contamination at various points but makes no reference to any damage being caused to underground fuel lines by the sampling process, whether by hand auger or otherwise. At par ES2 of that report when dealing with soil impacts, the authors refer to petroleum contamination at one underground soil site adjacent to the unleaded UST (Underground Storage Tank) and then observes:
The presence of the impacted soil is possibly due to holes, pitting or an actual breach of the UST, or possibly from poorly sealed underground supply and return lines connected to the UST. Refuelling of the UST is completed at a remote fill point where contamination was identified in a shallow (0.5 m bgl) soil sample below regulatory guideline levels, therefore it is unlikely that the impact is a result of filling operations. It is also unlikely that a surface spill could be responsible for the impacted soil sample as fuel would have to penetrate the bitumen and sub-surface to a depth of 4.0 m bgl which is inconsistent with PID field screening activities that fail to indicate elevated volatiles at shallower depths between 0 and 3.5 m bgl.
However, without undertaking a thorough investigation of the UST, fuel lines, fill point and bowsers infrastructures, the above is conjecture only. The extent of the vertical and horizontal soil impact is not possible to determine during judgemental sampling. Additional delineation work would be necessary to adequately assess the impacted area.
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42 It is not, therefore, immediately apparent how, or on what basis, those two documents were regarded as establishing as a fact capable of reasonable suspicion, that hand augering during test drilling by the applicant or an associated company in July 2004 damaged the underground fuel line.
43 Having made reference to the information relied upon, the s 37 notice then recites:
Based on the information referred to in attachment 2 the committee reasonably suspects that:
(a) contamination now present [2] on the site and on associated affected sites was caused or contributed to by damage to the unleaded petrol remote fuel pipe that occurred as a result of impact by a soil auger on 18 August 2004;
(b) given the extent of contamination identified in soil and groundwater to date, contamination from the damaged unleaded petrol fuel pipe contributed all significant contamination now present on the site and associated affected sites;
(c) the damage to the unleaded petrol fuel pipe was identified on 7 April 2005 and repaired on 8 April 2005, at which time the damage had been present for 233 days.
44 The notice then refers to Attachment 4, which is described as forming part of the notice and as specifying for each relevant period and source of possible contamination:
• the nature and extent of the contamination that the Committee reasonably suspects was caused or contributed to;
• the act or acts, if any, that the Committee reasonably suspects were carried out without lawful authority and gives details of 'an act that was done without lawful authority'; and
• the person or persons that the Committee considers are responsible for remediation, the shares of responsibility and the reasons why the Committee reasonably suspects that they are a person responsible for remediation of the site.
45 The s 37 notice then recites that:
Having regard to its earlier content, the Committee proposes to decide that the following parties are responsible for remediation to the extent indicated:
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- Coffey International Ltd 70%
Wesfarmers Kleenheat Gas Pty Ltd 15%
WA Seafood Exporters Pty Ltd 15%
Caltex Australia Petroleum Pty Ltd 0%
46 It then records that these proposed shares of responsibility may be changed in response to further submissions received in accordance with s 37.
47 Attachment 4, therefore, contains or is said to contain the information required by s 25 of the Act for each relevant period. In Attachment 4 the Committee recites and examines evidence relating to each of the six periods and observes that there is insufficient evidence or insufficient levels of contamination detected in any of the first three periods to warrant any orders for remediation or responsibility for remediation by persons involved in the site during those three terms.
48 For the applicant, the observations to which challenge is advanced are contained in Attachment 4 discussing period four. The material dealing with period four is quite lengthy and it includes extensive observations about the nature of the contamination and its extent which the Committee suspects was caused or contributed to by the applicant or others. Perhaps most significantly for present purposes are the following acts or matters which the Committee asserts it has reasonable grounds to suspect have occurred:
(a) damage was done to an underground fuel line at soil bore SB11 at about 0.6 m as a result of soil investigations conducted on 17 August 2004;
(b) damage to the unleaded petrol fill pipe ULP was discovered on 7 April 2005 during excavations to identify and repair the cause of the groundwater contamination;
(c) on the balance of probabilities the damage to the ULP fill pipe was caused by the impact of a soil auger on 17 August 2004;
(d) other sites of damage on the ULP fill pipe (the tangential damage site and the damage near the elbow joint) were most likely to have been caused during the removal of the pipe on 7 April 2005;
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- (e) the contamination now present at the site was contributed to during the fourth period by leakage of unleaded petrol from the circular damage site of the ULP fill pipe which would have occurred during each fill event between 17 August 2004 and 8 April 2005;
(f) contamination during the fourth period was caused by:
(i) the act of MPL damaging the ULP fill pipe;
(ii) the act by MPL of failing to notify WASE of the damage;
(iii) the act by WKG of failing to notify WASE of the contamination;
(iv) the act by WASE of using the damaged ULP fill pipe;
(g) the act by MPL of damaging the ULP fill pipe was an act that was done without lawful authority in that it caused pollution in contravention of s 49(3) of the Environmental Protection Act 1986 (EP Act);
(h) the act by MPL of failing to notify WASE of the damage to the ULP fill pipe was an act that was done without lawful authority in that it allowed pollution to be caused in contravention of s 49(3) of the EP Act.
49 The applicant submits that, because of the content of the s 37 notice and, in particular, pars 28 and 29 of Attachment 4 dealing with period four, the Committee has specified that the act or acts done without lawful authority which are required to be identified in the notice by s 37(b)(ii) being an act or acts which come within the definition of s 25(5), is an act or are acts that contravened a written law in force at the time they occurred (s 25(5)(b)(i), being a contravention or contraventions of s 49(3) of the Environmental Protection Act 1986.
The Environmental Protection Act 1986
50 In August 2004 the material provisions of s 49(3) of the Environmental Protection Act were as follows:
(3) A person who causes pollution or allows pollution to be caused commits an offence.
51 This is a Tier 1 offence (see pt 1 div 1) for an individual and for a corporation (pt 1 div 2). As such, a prosecution for an offence under
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- s 49(3) is not to be instituted otherwise than by the CEO (s 114(1)), but may be commenced at any time (s 114A(1)).
52 The term 'pollution' has a meaning defined by the Act by s 3A(1) which is as follows:
(1) In this Act -
pollution means direct or indirect alteration of the environment -
(a) to its detriment or degradation; or
(b) to the detriment of an environmental value; or
(c) of a prescribed kind,
that involves an emission.
53 By s 3 'emission' is defined as follows:
emission means -
(a) discharge of waste; or
(b) emission of noise, odour or electromagnetic radiation; or
(c) transmission of electromagnetic radiation;
54 and also 'waste' is defined to include:
any matter -
(a) whether liquid, solid, gaseous or radioactive and whether useful or useless, which is discharged into the environment;
(b) …
55 The s 37 notice does not expressly specify an act or acts by the applicant alleged to constitute the discharge of waste or the emission of noise, odour or electromagnetic radiation or transmission of electromagnetic radiation. Nor does it assert or identify any act or acts as constituting pollution by alteration of the environment directly or indirectly or involving an emission. However, it is evident, from reading the s 37 Notice as a whole, that it provisionally asserts that the pollution resulted from the leaking of petroleum products ('discharge of waste') from the damaged UPL.
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56 Notice of such a proposed finding by the first respondent contained in the s 37 Notice, or even such a finding if eventually made under s 39, does not constitute a conviction of the applicant for such an offence. There are several reasons for this. A prosecution for such an offence can only be made by the CEO, as stated. Secondly, any prosecution would need to be the subject of a charge in a court of competent jurisdiction which would result in the applicant being entitled to a trial according to law with all that that involves, including specific notification of the charge, sufficient disclosure of the evidence to be led to support the charge, the right of legal representation and to give evidence in opposition to the charge. Proof would need to be established beyond reasonable doubt and there would be the usual rights to seek leave to appeal or judicial review of any ultimate decision.
57 The first respondent is not a court and the procedure which is embarked on is not a prosecution. Nevertheless, the allegation amounts to an allegation of the commission of a criminal offence made otherwise than in the course of a criminal prosecution. Because this allegation does not involve any court proceedings, either civil or criminal, it is not appropriate to speak of the standard of proof which is required to be satisfied before a finding of such an act or act having been made or caused could be reached. No such degree of proof in the judicial sense is imposed upon the first respondent which is, of course, a body acting only administratively: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 282 and BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221, [56] - [60] (Martin CJ).
58 Nevertheless, some degree of persuasion or satisfaction as to the existence of the facts alleged by the s 37 Notice must exist because of the language of s 37 itself which requires the Committee to 'reasonably suspect' that the person caused or contributed to the contamination or to the extent of it alleged and that the Committee reasonably suspects that the person carried out an act without lawful authority as specified in s 37(b). This reference to the Committee reasonably suspecting certain matters invokes a long-established legal doctrine that there must be honest and reasonable grounds for suspecting that a certain state of affairs exists or that an action or omission has occurred in order for some action to be taken by an authority. I examined some of the authorities relating to the existence of a basis for a 'reasonable suspicion', although in a much different setting, in Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86 [146] - [153] where the requirements for the existence of a reasonable suspicion were examined in
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- many contexts - see Nicholls v Young [1992] 2 VR 209, 214 - 215 (Smith J); Shaaban Bin Hussien v Chong Fook Kam [1970] AC 942 947 - 949 (PC) (Lord Devlin) and Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019, 1025 (Ormiston J). See also Mitchell v John Heine & Son Ltd (1938) 38 SR (NSW) 466, 469 (Jordan CJ) and A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500. In Hardingham I observed [149]:
A multiplicity of unproved and unsupported allegations may give rise to imagination or surmise that a person has committed one or more of the alleged offences but that will not constitute reasonable suspicion in the absence of grounds.
60 In that respect, I consider that the degree of satisfaction needed to reach the level of reasonable suspicion will need to take into account several factors. These include the gravity of the allegation or the proposed finding so that, by analogy with the approach taken to the degree of satisfaction needed to be established before a finding of criminal conduct can be made in civil proceedings, the nature and consequence of the fact or facts to be established and the seriousness of the allegation made and the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from the finding are considerations which must affect the answer to the question whether or not there is a basis for a reasonable suspicion that the act or acts have occurred or have been caused as the case may be. This phraseology is but a minor variation, made with regard to the different setting, of that employed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, 362 - 363. Other cases establishing a similar approach are Helton v Allen (1940) 63 CLR 691; [1940] HCA 20 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; 110 ALR 449.
61 It follows from this that the requirements of reasonable suspicion imposed by s 37 extend to a requirement for reasonable suspicion that the acts or omissions constituting the elements of an offence under s 49(3) of
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- the Environmental Protection Act exist and, further, the requirements of s 37(b)(ii) and s 25(5)(b)(i) require that the act specifying the alleged contravention of the written law then in force should be provided in the details required under s 37(b) of the Act.
Applicant's submissions
62 Counsel for the applicant commences with the proposition that the decision making process of the first respondent leading towards its determination of responsibility for remediation requires the observance of procedural fairness or the principles of natural justice: Saeed v Minister for Immigration and Citizenship 2010 HCA 23; [2010] 241 CLR 252 [11] - [15]. This is a principle of construction leading to the implication that the principles of natural justice are incorporated in a statute: Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 and Kioa v West (1985) 159 CLR 550; [1985] HCA 81; 609 where Brennan J observed that observance of the requirements of natural justice is a condition attached to such a statutory power and governs its exercise so that a failure to fulfil the condition means that the exercise of the power is inefficacious: see also FAI Insurances Ltd v Winneke (1982) 151 CRL 342; [1982] HCA 26 , 409 (Brennan J). I accept, for present purposes, that the principles of procedural fairness and natural justice do apply to the decision-making by the first respondent under s 38 and that it is arguable that these principles also apply to a decision to issue a s 37 notice. Nothing in s 34(b) of the Act excludes these principles: Sullivan v Department of Transport (1978) 20 ALR 323, 242 and Consolidated Press Holdings v Wheeler (1992) 29 ALD 217; 109 FLR 241, 221.
63 Notwithstanding that the s 37 notice is a preliminary to any decision by the first respondent under s 39 of the Act, the applicant submits that it is a necessary and indispensible sequential step leading to the final decision by the first respondent under s 39 and, accordingly, is subject to judicial review despite not being finally determinative: Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438. I consider that this proposition is reasonably arguable and has merit in the sense later discussed to lay a basis for the grant of an order nisi at this stage if other criteria are also satisfied. Other discretionary factors, of course, which require attention both at this stage and at any review stage, include the right to make written submissions by the applicant under s 37, which must be considered under s 38(2), and also the existence of a right of appeal under s 40 and s 77 from a final decision of the first respondent.
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64 The applicant draws attention to the provisions in the s 37 Notice which expressly state that it relates not only to this identified site (lot 152) but also to any affected sites. It refers to contamination being present on the site and on associated sites and asserts that the Committee reasonably suspects that the contamination on associated affected sites was caused or contributed to by the damage to the UPL pipe which occurred as a result of impact by a soil auger on 18 August 2004. Apart from these references, the notice does not specify which are the other affected sites or what is the nature and extent of contamination to those other affected sites or who is responsible for any remediation for those sites or to what extent. It is, therefore, not clear to what extent, if at all, the proposed findings or any findings by the first respondent in relation to this site may be determinative of the liability of the applicant or others on other unspecified affected sites.
65 As to these matters, the applicant submits that the right to make written submissions disagreeing with any statement contained in a s 37 notice, which is available to the applicant under s 37(e), is of little or no utility or effect in a case where the s 37 notice does not, as it should, specify the matters required by s 37(a) and (b) or where the notice fails, adequately or at all, to specify the act that the committee reasonably suspects the person carried out without lawful authority with details of the contravention described in s 25(5)(b). It submits that this is the case with the present notice. More so is this alleged shortcoming significant when the written submission to be submitted by the recipient of the notice under s 37(e) is required to give reasons why the recipient of the notice disagrees with that particular statement and to provide information or documents supporting those reasons.
66 Implicit in the applicant's submissions is the proposition that the s 37(e) procedure entails a process of specific answers and explanations being given in response to specifically defined acts and proposed findings by the first respondent emerging from details which must be disclosed. The applicant's submission is that unless the details are first disclosed and the act or acts defined, such a response cannot, or cannot adequately, be prepared and submitted. Again, I consider this is an arguable proposition in the sense already mentioned.
67 While I accept for present purposes that it is arguable that the requirements of procedural fairness and natural justice apply to a decision to issue a notice under s 37 of the Act, that is a question which may need ultimate resolution in these proceedings in the light of South Australia v O'Shea (1987) 163 CLR 378; [1987] HCA 39. That in turn may include
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- the need to determine whether, in this legislation, the opportunity to make written submissions once the s 37 notice has been given as acknowledged by s 37(e) is a full or sufficient measure of the entitlement to procedural fairness by being heard under this legislation either generally or in this particular case. BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221 is a good example of how limited the rights of appeal are after the s 39 decision has been made.
68 The applicant submits that the first respondent has refused or declined to conduct any form of an oral hearing or to allow questioning of any of the makers of the statements forming part of the materials leading to the decision to issue the s 37 notice. The applicant submits that because this material included contested expert evidence on the question of whether the hand auger used in the exploratory drilling conducted by the applicant on 18 August 2004 could have or had, in fact damaged the underground petrol fill line, the requirements of procedural fairness necessitated such an opportunity or at least a questioning of the experts on their rival reports. For that submission the applicants rely on the decision of the NSW Court of Appeal in Hill v Green; Young v Buckley [1999] NSWCA 477; (1999) 48 NSWLR 161. That case involved the obligation of the director general under the Teaching Services (Education Teaching Service) Regulations 1994 (NSW) dealing with the laying of a disciplinary charge against a member of staff where the disciplinary authority had a discretion either to require an explanation from the staff member or to conduct an inquiry. The court held that the existence of such alternative procedures did not abrogate the obligation to accord procedural fairness and that if an explanation were demanded the requirements of procedural fairness must be observed including, if necessary, giving the employee a hearing. In that case, Spigelman CJ said at [49] - [50]:
[49] The nature of the allegations made, the extent of direct conflict, and the seriousness of the consequences which result from an adverse decision, indicate that some element of an oral hearing was required to satisfy the requirements of procedural fairness; see, eg, Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 at 599E - 602D.
[50] At the least, Mr Hill was entitled to have the decision-maker conduct some form of oral enquiry of the complainant and observe his confirmation of the allegations. Further, some form of testing of the complainant by the decision-maker or, perhaps, by representatives of Mr Hill, was also required.
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69 Similarly, Fitzgerald JA said at [148]:
[148] The charge was serious, and the decision whether he had committed the offence with which he was charged was dependent upon contested allegations and circumstances which required explanation, in both instances involving issues of credibility. It was unfair to Hill for the respondent Green to find Hill guilty after proceeding under reg 15(2)(a) and reg 153(a). Despite the respondent's submissions to the contrary, there was no competing considerations which were sufficient to deprive Hill of his entitlement to confront and cross-examine his accuser (cf Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 - 396; Heatley v Tasmanian Racing and Gaming Commission 91977) 137 CLR 487 at 516; McCormack v Commissioner of Taxation (Cth) (1979) 143 CLR 284 at 293 - 294, 306, 321; Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 at 598 - 602; Murray v Legal Services Commissioner (1999) 46 NSWLR 78), which, in the context of reg 51(2) and reg 15(3) of the Regulation, was only possible in an enquiry pursuant to reg 15(2)(b) and reg 16.
70 A point raised by the applicant is that the first respondent declined its specific request for an on-site meeting and inspection to examine further the dispute over whether or not it was possible that the applicant had damaged the subterranean pipeline by the hand auger drilling. The applicant submits that a decision to find that the applicant had committed either of the two nominated offences under s 49(3) of the Environmental Protection Act or had caused the contamination by damaging the subterranean pipe as alleged required a determination of issues of credibility and the reliability of the conflicting expert opinion evidence on this point and that both of those requirements necessitated an opportunity for an oral hearing. Also involved in any such determination as to whether or not there could be a reasonable basis for suspicion that the applicant had committed one or both of those offences was a consideration of the significance of the potential that such damage, if indeed it had been caused by the applicant, had occurred by accident thus negating any criminal liability and that that onus for excluding accident was on the person or body who asserted that such an offence had been committed.
71 For similar reasons, the applicant submits that it would be necessary for the first respondent to have reasonable grounds for suspecting that any such damage to the pipeline, if indeed it had occurred, had not resulted from an honest and reasonable mistake of fact by the applicant - Wroblewski v Starling [1987] WAR 233. This in turn called
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- for an examination of whether or not reliance by the applicant on the site map when planning and conducting its drilling programme meant that, even if contrary to its contentions, it had inadvertently damaged the underground fuel line, that had occurred by accident or as a result of an honest mistake as to the location of the subterranean lines, in either case excluding any criminal liability.
72 Furthermore, the applicant submits that the requirements of procedural fairness and natural justice in this setting could only be satisfied during the first stage of the decision making process; that is, leading up to the decision to issue the s 37 notice. This is based on the terms of s 37(e) which provide that once such notice has been given, the interested person may only make a written submission in response to the notice and that the final decision under s 38 is to be made by relying on such written submissions. More broadly, the applicant submits that the process of written submissions contemplated by s 37(e) gives no opportunity to contest issues of credibility or reliability of the materials relied upon by the Committee in reaching its decision to issue the s 37 notice which, for reasons set out in Hill v Green; Young v Buckley, may give rise to the necessity for an oral hearing and possible confrontation of the witness or material to be relied upon by the first respondent.
73 I consider that these contentions are reasonably arguable on behalf of the applicant and, if established, could lead to the quashing of the notice or prohibition to prevent the first respondent from proceeding further without according some further measure of procedural fairness if that, indeed, is required. These same considerations lead to a conclusion that it is arguable that, if these propositions were established, the applicant may have an entitlement, in the discretion of the court, to the issue of a writ of mandamus to require the first respondent to conduct the decision making process under s 37 and s 38 in a manner which accords fully with the alleged entitlements to procedural fairness.
74 A further contention for the applicant is that the s 37 notice is defective because it fails adequately to provide details of the basis upon which the first respondent formed its alleged reasonable suspicion that the applicant had committed either or both of the two offences under s 49 of the Environmental Protection Act and, overlapping that contention, that it also failed to provide any reasons for preferring the evidence of one side of the dispute over the issue of the alleged cause of the pipe fracture by the hand-held auger, rather than another. The applicant contends that it is entitled to know the case it has to answer in order to be able to respond effectively: Apache Northwest Pty Ltd v Agostini (No 2) [2009]
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- WASCA 231 [214] - [215] and that 'where there is conflicting evidence (as is here the case) it is incumbent upon the tribunal at least to indicate its reasons for preferring the evidence of one witness to that of another' - Davies v Australian Securities Commission (1995) 59 FCR 221; 131 ALR 295, 244, Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 411, 520 - 521 (Mansfield J) and Bisley Investment Corp Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132; 40 ALR 233.
75 In this respect, the applicant also relies upon the observations of Hill J in Copperart Pty Ltd v FCT (1993) 30 ALD 377; 26 ATR 327 which, although the decision was reversed on other grounds in Copperart Pty Ltd v FCT (1994) 50 FCR 345; 28 ATR 119, success in the appeal did not impinge on the observations of Hill J at first instance at 377 when his Honour said:
The parties are entitled to know what evidence the tribunal accepted and what evidence it took into account. Likewise, the parties are entitled to know what evidence the tribunal rejected. Without this knowledge, the parties will have but an incomplete idea of the tribunal's process of reasoning and a lessened respect for the tribunal's decision-making process.
76 I consider that it is arguable that within the express terms of s 37 of the notice issued by the first respondent, there may be an obligation to set out the reasons why the tribunal preferred the evidence or information coming from one, or some, set of sources in relation to the causation of the contamination of this site rather than evidence and denials coming from the applicant. Just how far any such alleged obligation may extend and how it should be satisfied within the requirements of s 37(b) of the Act will obviously be a matter for consideration on the return of any order to review and it is not to be assumed that the references to the authorities relied on by the applicant for this proposition at this stage are, in all respects, applicable to the decision making process of the first respondent. That will obviously be a matter for consideration on the return of orders made.
77 Still further, the applicant submits that a failure by the first respondent to comply with the requirements of s 37(b) of the Act by failing to set out the material acts or details underlying the proposed finding or by failing to identify what evidence in the documents referred to is relied upon for such assertions of fact or failing to set out adequately what certain evidence is preferred to other evidence may constitute a breach of statutory duty going to jurisdiction or constitute errors of law on
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- the fact of the record - Brosnan v Meridian Mining Ltd [2011] WASC 43 [25]. The applicant submits that the duty of the first respondent to give reasons for a final decision under s 38 (see s 29(2)(c)) does not exclude an obligation to give reasons for the grounds of reasonable suspicion relied upon for any contravention of s 25(5)(b) of the Act as required by s 37(b) and that a duty to provide reasons in order to give content to the obligation to give details of the matters referred to in s 37(b) arises either expressly from the section or by implication: Hancock v Executive Director of Public Health [2008] WASC 224 [48] - [83].
78 Again, I consider that these contentions are arguable and are sufficient to justify the grant of an order nisi to show cause why there should not issue certiorari, prohibition or mandamus or, for that matter, why there should not be a declaration or other relief to the effect sought by the applicant.
Test for an order to review
79 There is much authority for the proposition that the test for the grant of an order nisi for prerogative relief or an order to review is whether or not the applicant has an arguable case for the relief sought - Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282 [54]; Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264. However, as explained by Allanson J in Brosnan v Meridian Mining Ltd [2011] WASC 43 [32] Martin CJ suggested in McKay v Commissioner of Police [2006] WASC 189 and in Woodley v Minister for Indigenous Affairs [2009] WASC 251 that it would be an 'inappropriate' exercise of power for a Judge to issue an order nisi unless the Judge was also satisfied that the case had some reasonable prospects of success, even though there was an arguable case. That approach has been followed in several subsequent cases. See Re Anstee-Brook; Ex parte Karara Mining Ltd [2012] WASC 129 but note the observations of Kenneth Martin J in Re Anstee-Brook; Ex parte Mount Gibson Mining Ltd [2011] WASC 172.
80 In the present case I consider that I need also to take into account the complexity of the factual issues upon which the first respondent is eventually required to make a decision; the lack of any specific content as to the requirements of procedural fairness contained in the Contaminated Sites Act itself; and the circumstance that, so far as I am aware, there has been no previous authority dealing with the questions which are raised on this application. All this means that forming any opinion as to the degree of prospects of success, especially on an ex parte hearing in such a matter, is a rather uncertain exercise. I am content to proceed on the basis that for
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- an order to review to be granted I need to be satisfied that the applicant has an arguable case and one with some degree of merit which cannot be put aside on such a preliminary hearing.
Return of order nisi before Court of Appeal
81 As noted, the applicant has sought an order that if an order nisi for prerogative relief or other review is granted, it should be made returnable before the Court of Appeal - a result which can be ordered in accordance with RSC O 52 r 2. This was also sought in proceedings before Allanson J in Brosnan v Meridian Mining Ltd but his Honour said [58]:
Under O 56 r 2 of the Rules of the Supreme Court, an order to show cause may be heard by a judge in chambers or in court, or in the Court of Appeal. The rules do not indicate in which circumstances the matter should be heard by the Court of Appeal, and do not limit the discretion of the judge granting the order nisi. The choice of court has been recently referred to in a small number of cases: Re Her Honour Judge Schoombee; Ex Parte Attorney General for Western Australia [2011] WASC 23; Re Western Australian Planning Commission; Ex Parte Solomon [2010] WASC 192; Re Western Australian Planning Commission; Ex Parte South Fremantle/Hamilton Hill Residents' Association Inc [2005] WASC 50. There has been no attempt, so far as I am aware, to state any guidelines for the exercise of the discretion.
82 In that case, Allanson J refused to refer the matter to the Court of Appeal and instead directed that the order to review should be returnable before a single Judge largely, it would seem, because that was thought to be a better use of the finite resources of the court. I agree, with respect, that that is a significant consideration to be entertained by a Judge when confronted with any such decision. Other potential factors of significance may be the existence of divergent approaches towards the resolution of the issue or issues in hand by different Judges at first instance in the court, or even divergences of opinion between Judges of this court and another Australian Supreme Court or similar factors which may call for a resolution of apparently inconsistent or incompatible decisions or approaches by a Court of Appeal.
83 It is also to be remembered that if any such matter is directed to be returnable first before the Court of Appeal, then the Court of Appeal will be deprived of such advantages as may exist in having the issues laid out and decided by a Judge at first instance in some considered decision, especially if there is likely to be any factual contest. An immediate reference of the matter to the Court of Appeal means that any further judicial review by appeal could, in most cases, only be by special leave of
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- the High Court of Australia, meaning that the litigants would be deprived of an intermediate right of appeal.
84 These last factors point strongly towards the desirability of returning such orders to a single Judge in the absence of good reason to the contrary but, of course, any decision in this regard must always depend upon the circumstances of the particular case and is a matter for the discretion of the Judge granting the order nisi or order to review.
85 In this case, it was not suggested that there was any conflicting line of authority between courts of co-ordinate jurisdiction or Judges within the same court or any other reason why it should go at first instance to the Court of Appeal. Accordingly, I am satisfied that the order nisi and order to review which should be granted in this case should be made returnable before a single Judge of the court.
Terms of proposed order to review
86 The exact terms of the proposed order to review sought by the applicant are contained in the originating motion and in minutes of the proposed orders filed by the applicants. At the hearing I considered that, in certain respects, the orders sought went further than any reasonably arguable requirement of s 37(b) could extend and, for that reason, I indicated that I would not be prepared to grant an order to review including all the terms as then proposed. As a result, counsel for the applicant sought an amended version of proposed orders which was later submitted and approved. Those orders were made so as to take effect from 13 June 2012 and directions were made for service and liberty was granted for any interested party to apply to be joined as an additional respondent within a limited period.
Stay of the s 37 notice
87 The applicant also sought an order, pursuant to RSC O 56 r 3, pending the determination of final relief, staying the effect of the s 37 notice and, therefore, of any final decision by the first respondent under s 38. In view of the long history of this investigation and the complexity of the issues which arose, I was satisfied that this was an occasion for such a stay but I directed that there should be liberty to any interested party to apply on 48 hours' notice for a variation or discharge of the stay.
88 Once the order to review has been served and any further appearances entered, there should be a directions hearing before a Judge
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- or Registrar to deal with preparations for the return of the order to review. Costs will be reserved.
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