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Re Graham Anstee-Brook; Ex parte Mount Gibson Mining Ltd

Re Graham Anstee-Brook; Ex parte Mount Gibson Mining Ltd

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE GRAHAM ANSTEE-BROOK; EX PARTE MOUNT GIBSON MINING LTD [2011] WASC 172

CORAM: KENNETH MARTIN J

HEARD: 1 JUNE 2011

DELIVERED : 14 JULY 2011

FILE NO/S: CIV 1827 of 2011

MATTER :An application for a writ of certiorari against Mr Graham Anstee-Brook, Adjudicator appointed under the Construction Contracts Act 2004 (WA)

EX PARTE
MOUNT GIBSON MINING LTD
Applicant
AND
GRAHAM ANSTEE-BROOK
First Respondent
DOWNER EDI WORKS PTY LTD
Second Respondent

FILE NO/S :CIV 1810 of 2011

BETWEEN :DOWNER EDI WORKS PTY LTD
Plaintiff
AND
MOUNT GIBSON MINING LTD
Defendant

Catchwords:

Prerogative writ - Certiorari - Order nisi - Threshold for grant - Jurisdictional error - Reasons of adjudicator - Authority of Superintendent's Representative - Procedural fairness - Denial - Privative clause

Legislation:

Construction Contracts Act 2004 (WA)

Result:

Order nisi refused

Category: A

Representation:

CIV 1827 of 2011

Counsel:

Applicant:     Mr M Howard SC & Mr S Davis
First Respondent           :     No appearance
Second Respondent      :     Mr C Zelestis QC & Mr M Feutril

Solicitors:

Applicant:     Norton Rose Australia
First Respondent           :     No appearance
Second Respondent      :     Corrs Chambers Westgarth

CIV 1810 of 2011

Counsel:

Plaintiff: Mr C Zelestis QC & Mr M Feutril
Defendant: Mr M Howard SC & Mr S Davis

Solicitors:

Plaintiff: Corrs Chambers Westgarth
Defendant: Norton Rose Australia

Case(s) referred to in judgment(s):

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
Annetts v McCann (1990) 170 CLR 596
Bredyn Pty Ltd v Davenport [2004] NSWCA 394
Craig v The State of South Australia (1995) 184 CLR 163
Donges v Ratcliffe [1975] 1 NSWLR 501
Eclipse Resources v Department of Environment and Conservation [2010] WASC 360
General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125
Inland Revenue Commissioners v National Federation of Self‑Employed And Small Businesses Ltd [1982] AC 617
Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531
McKay v Commissioner of Police [2006] WASC 189
Monaco v Arnedo Pty Ltd (Unreported, WASC, Full Court, Library No 940481, 6 September 1994)
O'Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19
Pantorno v The Queen (1986) 166 CLR 466
Police & The State of South Australia v Lymberopoulos [2007] SASC 247; (2007) 98 SASR 433
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Re Baker; Ex parte Johnston (1981) 55 ALJR 191
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Cazaly Iron Ltd v The Hon John Bowler MLA, Minister for Resources & Ors [2006] WASCA 282
Re Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASC 23
Re McTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Talbot v Lane (1994) 14 WAR 120

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] WASC 172
Decision Date: 14 JULY 2011

CaseChat Overview and Summary

Mount Gibson Mining Ltd applied to the Supreme Court of Western Australia for an order of certiorari, seeking to quash a decision made by an adjudicator under the Mining Act 1978 (WA). The adjudicator had determined that certain land owned by Mount Gibson Mining Ltd was subject to a right of entry and possession held by Graham Anstee-Brook. The primary dispute was over the validity and authority of the adjudicator's decision, as well as the procedural fairness afforded to Mount Gibson Mining Ltd during the decision-making process.

The court had to determine whether the application for prerogative relief met the threshold for granting an order nisi, considering the complexity of the issues involved. The legal issues included whether the adjudicator had acted beyond their authority, whether procedural fairness was observed, and whether the privative clause in the Mining Act 1978 (WA) precluded judicial review. The court also needed to evaluate the merits of the applicant's claims at the order nisi stage, particularly in light of the complexity of the factual and legal matters presented.

The court found that the application did not meet the threshold for an order nisi as the applicant had not established a reasonably arguable case. The court emphasised that, while the test for granting an order nisi could vary depending on the complexity of the issues, in this case, the application was not sufficiently substantiated. The court noted that the applicant's grounds for relief were largely based on contentious factual matters and did not present a clear or arguable legal case. Additionally, the court held that the privative clause in the Mining Act 1978 (WA) did not preclude the court from exercising its jurisdiction to review the adjudicator's decision on the basis of jurisdictional error or procedural unfairness.

The application for an order of certiorari was dismissed, and no order nisi was granted. The court held that the applicant had not demonstrated a reasonable prospect of success on the merits, and therefore, the application did not meet the necessary threshold for an order nisi.

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

At [55], by reference to the speech of Lord Diplock in Inland Revenue Commissioners v National Federation of Self‑Employed And Small Businesses Ltd [1982] AC 617, followed in Western Australia in Talbot v Lane (1994) 14 WAR 120, 152 ‑ 153 by Malcolm CJ (with whom Kennedy and Ipp JJ agreed), Buss JA observed:[55]In my opinion, the test to be applied and the approach to be taken at the order nisi stage, where prerogative relief is not sought in respect of quasi criminal proceedings, are, in general, those approved by the Full Court in Talbot. He continued:If, however, the application raises matters of factual and legal complexity, a 'quick perusal of the material then available' may not be sufficient to determine whether an applicant has a reasonably arguable case. Some greater scrutiny may be necessary. The observations of McLure J (as she then was) in Re McTiernan are not inconsistent with Talbot. The test and approach at the order nisi stage also apply to an application for leave to amend the grounds of an order nisi, at least where the application is made before its return. If the proposed amended ground is so clearly untenable that it cannot succeed, leave to amend should not be granted. Also, there must be evidence to support any factual findings which the applicant asserts in the proposed amended grounds. I refer as well to the subsequent observations by Martin CJ in McKay v Commissioner of Police [2006] WASC 189 [3] and in Woodley v Minister for Indigenous Affairs [2009] WASC 251 [37], as to it being inappropriate to grant an order nisi on an arguable case if the case is assessed overall to have no reasonable prospect of success. As to that, see observations by Corboy J in Re Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASC 23 [11] ‑ [18] and Eclipse Resources v Department of Environment and Conservation [2010] WASC 360 [45] ‑ [52]. I find it is unhelpful to lay down unduly semantic or inflexible tests regarding an order nisi threshold. The potential arguability of grounds advanced by an applicant seeking the order nisi must be evaluated on the merits of each individual case, in the invariably unique underlying contexts of each application. If an argument advanced by the applicant is purely one of law, it may be capable of being more safely evaluated as to its long term merit in contrast to arguments rooted around contentious facts. A cautious approach to the summary dismissal of pleaded causes of action, classically explained by Barwick CJ in General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125, as referred to by McLure J (as she then was) in Re McTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264 can provide a helpful analogue in some instanaces. However, grounds which can be safely evaluated as ultimately being bound to fail (meaning that the argument presents with negligible prospect of ultimately sustaining an order absolute) can hardly surmount the order nisi threshold. The assessment threshold for an order nisi should not be set at such a low level as to facilitate the wasteful furtherance of meritless arguments, on meritless grounds, on meritless applications.