Re National Parks and Nature Conservation Authority - [2001] WASCA 368

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RE NATIONAL PARKS AND NATURE CONSERVATION AUTHORITY; EX PARTE McGREGOR & ANOR [2001] WASCA 368

CORAM: MALCOLM CJ
KENNEDY J
ROBERTS-SMITH J

HEARD: 23 JULY 2001

DELIVERED : 23 NOVEMBER 2001

FILE NO/S: CIV 2522 of 2000

MATTER :An application for Writs of Certiorari and for a declaration against the NATIONAL PARKS AND NATURE CONSERVATION AUTHORITY and the EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT

EX PARTE
NEIL RUSSELL McGREGOR
RHONDA SUSAN McGREGOR
Applicants

Catchwords:

Administrative law - Certiorari and declarations - Licences for commercial activities in national park - Whether licence exclusive - Subsequent grants of other licences - Review of decisions by National Parks and Nature Conservation Authority and the Department of Conservation and Land Management

Legislation:

Conservation and Land Management Act 1984 (WA), s 21, s 22, s 33, s 56, s 101

Result:

Certiorari and declarations refused

Category: A

Representation:

Counsel:

Applicants:    Mr J C Giles
Interveners  :    Mr M J McCusker QC & Mr D E Grondal
Executive Director,
Department of Conservation
and Land Management             :    Mr B P King

Solicitors:

Applicants:    Solomon Brothers
Interveners  :    Pullinger Readhead Stewart
Executive Director,
Department of Conservation
and Land Management             :    State Crown Solicitor

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

Ackroyd v Whitehouse (Director of National Parks and Wildlife Service) (1985) 2 NSWLR 239
Annetts v McCann (1990) 170 CLR 596
Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 132 ALR 379
Brack v Wills [1977] 1 NSWLR 456
Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management (1997) 18 WAR 102
Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126
Coles v Wood (1981) 1 NSWLR 723
Corio Bay & District Private Hospital N.H. Pty Ltd v Smith (1998) 87 FCR 37
Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648
Kioa v West (1985) 159 CLR 550
Kruger v Commonwealth (1997) 190 CLR 1
Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270
Malloch v Aberdeen Corporation [1971] 2 All ER 1278
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286
Pharmacy Restructuring Authority v Martin(1994) 53 FCR 589
R v Aston University Senate; ex p Roffey [1969] 2 QB 538
R v Gray; ex parte Marsh (1985) 157 CLR 351
Re David Smith and WA Development Corporation; ex p Rundle (1992) 5 WAR 295
Re McHattan and Collector of Customs (NSW)(1977) 18 ALR 154
Re Real Estate and Business Agents Supervisory Board; Ex parte Cohen (1999) 21 WAR 158
Re Refugee Tribunal & Anor; ex parte Aala (2000) 176 ALR 219
Russell v Duke of Norfolk [1949] 1 All ER 109
Yamauchi v Jondaryan Shire Council (1998) QPLR 452
Yulara Pty Ltd v Rockhampton City Council (1999) QPELR 296

Case(s) also cited:

Ainsworth v Criminal Justice Commission (19911992) 175 CLR 564
Bass v Permanent Trustee Company Limited (1999) 198 CLR 334
Bennett & Co v CLC Corporation (2001) 37 ACSR 96
Clancy v Butchers' Shop Employees Union (1904) 1 CLR 181
Clissold v Perry (1904) 1 WAR 363
Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 347
Conroy v Springvale & Noble Park Shire [1959] VR 737
Cooper Brooks (Wollongong) v Federal Commissioner for Taxation (1981) 147 CLR 297
Craig v South Australia (1995) 184 CLR 163
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Dainford Ltd v Smith (1985) 155 CLR 342
Durham Holdings Pty Ltd v New South Wales (2001) 177 ALR 436
Esber v Commonwealth (1992) 174 CLR 430
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Mahon v Air New Zealand Ltd [1984] AC 808
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1
R v Hickman; ex parte Fox & Clinton (1945) 70 CLR 598
R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet [1972] 2 QB 299
Re Ackland; Ex parte Love (1989) 1 WAR 562
Re Minister for Immigration & Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473
Smith v ANL Ltd (2000) 176 ALR 449
South-West Forest Defence Foundation Inc v Executive Director of the Department of Conservation and Land Management (No 1) [1998] HCA 34; (1998) 154 ALR 405
Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492
University of New South Wales v Moorhouse (1974-1975) 133 CLR 1
Wright v McQualter (1970) 17 FLR 305

MALCOLM CJ: In my opinion the order nisi for a writ of certiorari against the National Parks and Nature Conservation Authority ("NPNCA") or alternatively the Conservation Commission and the Executive Director of the Department of Conservation and Land Management ("CALM") (collectively "the respondents") to show cause why writs of certiorari should not be issued or a declaration made to remove into this Court for the purposes of being quashed a series of decisions respectively made by them, should be discharged. I have reached that conclusion for the reasons to be published by Roberts‑Smith J which I have had the advantage of reading in draft.
In particular, the major obstacle for the applicants was that the licence they were granted was not exclusive. Representations were made that the NPNCA proposed to issue only one relevant licence. The licence as issued was subject to condition 15 which empowered the Executive Director to vary the terms and conditions of the licence at any time under the CALM regulations as Roberts‑Smith J concluded. Further, the licence did not give the licensees exclusive access to CALM‑managed areas or facilities. The circumstances under which the NPNCA subsequently and reluctantly approved two other safari tour licences for operation in Yardie Creek are fully explained by Roberts‑Smith J. Prior to the acceptance by the applicants of the offer of the licence on 16 November 1999, they had been told by Mr Quartermaine, in response to their request for confirmation that no other licences would be issued, that the issue of their licence could not prevent other licences being issued.
I also agree entirely with the opinion expressed by Roberts‑Smith J that the substantive issue was whether the grants of the two additional safari tour licences to the McLeods and Mr Breeden were made in circumstances which denied procedural fairness or natural justice to the applicants. As the authorities referred to by his Honour demonstrate, standing and a right to be heard will be established so as to oblige a decision maker to give an affected person a right to be heard where the decision will affect the economic or financial interests of the party concerned in a direct and immediate way: see FAI Insurance Ltd v Winneke (1982) 151 CLR 342 at 360 per Mason CJ; Kioa v West (1985) 159 CLR 550 at 584 per Mason CJ; and at 619 per Brennan J; Re Real Estate and Business Agents Supervisory Board; Ex parte Cohen (1999) 21 WAR 158 at 184 per Malcolm CJ and the other cases cited by Roberts‑Smith J.
It is plain that the applicants were denied procedural fairness. The applicants were prevented from attending the meeting on 10 March 2000 by the advent of a cyclone. There was no evidence that any of the persons present at the meeting, who participated in the decision to grant the additional safari tour licences, had read or taken into account the written submission made by the applicants. In this context the reliance by the respondents on the affidavit of Ms Silvestro was quite unsatisfactory. All Ms Silvestro was able to say was that the applicants' submission was received by fax at the office of CALM on the morning of 8 March 2000. Her recollection was that the submission arrived on her desk late in the afternoon of 9 March 2000 or early in the morning of 10 March 2000. Ms Silvestro was the Acting Secretary of the NPNCA. There was no explanation why, having spoken to Mrs McGregor on the telephone, her own fax number had not been given. The fax was sent to a separate fax number at the reception. I agree with the comments of Roberts‑Smith J that this says little for the office procedures adopted. Ms Silvestro did not amend the agenda for the meeting to include reference to the submission. According to her evidence she simply placed photocopies of the submission on the meeting table before the meeting commenced on 10 March at 9.15 am.
There is no evidence that Ms Silvestro or anyone else drew the attention of the Chairman and members of the NPNCA to the existence of the submission. In the circumstances of this case it would be reasonable to expect that the Chairman and/or the Secretary of the meeting would have provided such evidence if it existed. There is no evidence that members were aware of the submission, let alone that any person present read the submission before a decision was taken. The submission is not referred to in the minutes of the meeting. The only evidence is that of Ms Silvestro to the effect that the submission:
"… was before the members before the decision was made."
In the context that says no more than that the submission was on the table before the decision was made. In the circumstances, I agree entirely with Roberts‑Smith J that the unilateral actions of CALM and the NPNCA in extending the safari tours defeated the applicants' legitimate expectation and, I would add, constituted a denial of natural justice and procedural fairness.
So far as the remaining issues are concerned, I have nothing to add to the reasons to be published by Roberts‑Smith J.

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Roberts-Smith J, with which I am in agreement. For those reasons I would discharge the order nisi.
ROBERTS-SMITH J: This is the return of an order nisi for writs of certiorari to quash, and for declarations in relation to, certain decisions made by the Minister for the Environment and Labour Relations ("the Minister"), the National Parks and Nature Conservation Authority ("the Authority") and the Executive Director ("the Executive Director") of the Department of Conservation and Land Management ("CALM") between December 1999 and July 2000 concerning the renewal of permits to Alan Breeden ("Breeden") and Neil and Coralie McLeod ("the McLeods") respectively, to conduct safari boat tours on Yardie Creek in the north of Western Australia.
The applicants ("the McGregors") say that the Authority determined in August 1999 that they should be given an exclusive licence to operate boat tours on Yardie Creek, that such licence was issued to them by CALM in December 1999 and that in the subsequent renewal of permits to Breeden and the McLeods, the applicants were denied natural justice by the Minister, the Authority and CALM and that the renewals of the permits were beyond power or vitiated by error of law.
Yardie Creek is located within Cape Range National Park, approximately 90 kms generally south‑west from Exmouth. The Cape Range National Park is on Cape Range Peninsula and covers an area of some 50,581 hectares. A return boat tour along Yardie Creek can extend to 2 kms dependant on annual rainfalls.
It is convenient at this point briefly to outline the statutory context.
The Authority was established by s 21 of the Conservation and Land Management Act 1984 (WA) ("the CALM Act"). National Parks (including the Cape Range National Park) were vested in the Authority by s 22(1)(a). Lands vested in the authority are managed by CALM, which was itself established by Part IV of the CALM Act.
Part VII of the CALM Act deals with permits, licences, contracts and leases.
CALM's functions are set out in s 33 and are expressed to be subject to the direction and control of the Minister. They include the management of land (and its associated forest produce, fauna and flora) to which the CALM Act applies.

By s 101 the Executive Director is given power to grant licences for the use of land subject to the CALM Act. That section relevantly provides as follows:
"(1)The Executive Director may grant a licence in writing to any person to enter and use any land to which this Division applies.
(1a)The Minister, on the recommendation of the Authority, the Commission or the Executive Director, as the case requires, may, by notice published in the Gazette, declare that a permit is required for the carrying on of any activity specified in the notice on land to which this Division applies.
(1b)The Executive Director may grant to a person a permit of the kind required by a declaration made under subsection (1a).
(1c)A person shall not, on any land to which this Division applies, carry on any activity for which a permit is required by a declaration made under subsection (1a) unless the person is -
(a)the holder of a permit of the kind required by the declaration; or
(b)authorized to carry on that activity on the land under this Act or another written law.
Penalty: $4 000.
(1d)…
(2)The Executive Director may renew the period of operation of a licence or permit under this section from time to time, or transfer the authority it confers from one person to another, or, where its operation relates to any place, may transfer that operation to another place of the same kind.
(3)A licence or permit under this section may be granted, renewed or transferred subject to such conditions as the executive Director thinks fit, which conditions-
(a)shall be endorsed upon or attached to the licence or permit when granted, renewed or transferred, as the case may be; and
(b)may be added to, cancelled, suspended and otherwise varied by the Executive Director from time to time during the operation of the licence or permit."
The Conservation and Land Management Regulations 1993 ("the Regulations") require those operators conducting commercial activities in national parks and other conservation areas to obtain the appropriate licence from CALM.
Part 5 of the Regulations was promulgated on 9 February 1993. It contains provisions concerning the licensing of commercial operations in national or conservation parks, nature reserves and marine parks and reserves. Regulation 11 makes it an offence for any person to sell any goods or services in such places without a licence. Regulation 13 empowers the Executive Director to grant a licence in writing to any person. A licence so granted is valid for the period specified in it, to a maximum of five years (r 15) and may be renewed for a further period not exceeding five years (r 16). A licence may be granted or renewed subject to such conditions and restrictions as the Executive Director thinks fit (r 17(1)). Any conditions or restrictions must be endorsed upon or attached to the licence and may be added to, cancelled, suspended and otherwise varied by the Executive Director from time to time during the operation of the licence (r 17(2)).
Prior to 15 November 2000, the powers of the Executive Director to grant licenses under Division 2 of Part 7 in respect of the Cape Range National Park were, by s 99(1), exercisable only with the approval of the Minister and the Authority - that is, the approval of each was required.
On 15 November 2000 the CALM Amendment Act 2000 (No 35 of 2000) came into operation. That made substantial amendments to the CALM Act. The Authority was abolished, as was the Lands and Forests Commission. A body called the Conservation Commission of Western Australia ("the Commission") was established (s 18). The Commission was given the function (amongst others) of having vested in it all State forest, timber reserves, national parks, conservation parks, and the like and to have the care, control and management of such land (s 19).
Section 99 of the CALM Act was amended so that the Executive Director could exercise the power to grant a licence under Division 2 of Part 7 in connection with the Cape Range National Park only with the approval of the Minister and after consultation with the Commission. It can be seen therefore, that the requirement of approval by the Authority was replaced with a requirement merely for consultation with the Commission.
It was submitted on behalf of the Executive Director as a preliminary issue that certiorari does not lie here against the Authority because that no longer exists and it cannot lie against the Commission because that is an entirely new and different entity which did not succeed to any of the rights, obligations or liabilities of the Authority. Attention was drawn to the different nature and functions of the Commission, in particular that it has only a consultative role under s 99 of the CALM Act whereas the Authority's function was to approve or refuse the granting of a licence by CALM and that the Commission must give effect to directions of the Minister, which was not an obligation imposed on the Authority.
In my opinion the writ does lie against the Commission for the shortly expressed reason that it is the successor in title to the land and waters in respect of which the relevant licences have been issued and although its roles and functions do differ in some respects from those of the Authority they effectively replace those of the latter in the statutory scheme. Furthermore, it is now recognised that the removal of a record into court to be quashed is notional only (R v Gray; ex parte Marsh (1985) 157 CLR 351, 386). In any event, in light of the conclusions to which I have otherwise come, it is not necessary for me to make any final determination of this issue.
As already observed above, Yardie Creek is situated in the Cape Range National Park. It is adjacent to the Ningaloo Marine Park. Both the Cape Range National Park and the Ningaloo Marine Park have considerable scientific and cultural significance. Yardie Creek is the only gorge on Cape Range which contains permanent water. Yardie Creek is a submerged canyon which is infrequently open to the sea. The creek provides a haven for a variety of fish species and the canyon walls are home to rock wallabies and nesting birds such as reef herons, corellas, ospreys, swallows and kestrels. There is a freshwater pool in the upper reaches of the creek which attracts a variety of wildlife.
In the late 1980s it was recognised that there was increasing environmental and commercial pressure on Yardie Creek. It was apprehended that this would be increased by a plan to seal the road from Exmouth to Yardie Creek. CALM was anxious to limit the number of boats on the creek, both commercial and recreational.
Since July 1989 the McGregors, trading as "Yardie Creek Tours", have carried on a business providing boat tours up Yardie Creek for the purposes of tourists viewing spectacular rock formations, vegetation and fauna, including the black footed rock wallaby, a threatened species.
The operations of Yardie Creek Tours are conducted under a licence granted by the Executive Director. The first licence was granted in May 1989 after the McGregors responded to a call for expressions of interest advertised by CALM in February that year. On 1 May 1989 CALM issued to Yardie Creek Tours a 12 month permit ("the 1989 permit") to conduct a boat tour on the creek using a 30 passenger launch. Although the right was described by CALM as a "permit", a licence fee of 5 per cent of the yearly gross income from the boat tour operation was charged.
At that time the grant by CALM of a permit or licence required the approval of both the Minister and the Authority. It also seems to be common ground that the Authority had determined that only one boat should have the right to take people along Yardie Creek on a regular and commercial basis, essentially because of the potential adverse impact on the wildlife by large numbers of motorised vessels travelling up Yardie Creek.

During 1989 Breeden and the McLeods were conducting what were described as "safari tours" in the park. These tours involved the use of four wheel drive vehicles to carry tourists to points of interest in the park including to Yardie Creek. Breeden and the McLeods, as part of their safari tours, had for a short time prior to Yardie Creek Tours commencing to operate in 1989, been providing their customers with a trip up Yardie Creek in a dinghy carried on the roof of the tour motor vehicle.
Breeden and the McLeods responded to the 1989 invitation for expressions of interest but they did not propose a launch boat tour. The position apparently was that although the Authority wanted there to be only one boat licence issued for boat tours on Yardie Creek, it eventually agreed in response to arguments from officers of CALM to allow the safari tours to continue using dinghies as a component of their safari tours.
The Authority's decision to restrict the number of commercial operators on Yardie Creek was based upon concerns about the potential adverse impact on endemic wildlife by large numbers of motorised vessels travelling up the creek, that the quality of the experience of visitors in the gorge may be diminished by having other vessels within sight and sound while travelling in the creek, and the Authority's apprehension about the potential increase in visitor numbers being magnified by the possibility of the Yardie Creek access road being bitumen sealed.
During 1989 there was a total of 8 trips a day being conducted along the creek, that being the maximum number permitted by the Authority. The safari tour operators were conducting one each and up to six could be conducted by Yardie Creek Tours.
This situation continued for five years and the licences were re‑issued in 1994 on the same terms.
However, over time the safari tours operators, particularly the McLeods, increased the size of their passenger vehicle and boat. They also wanted to have a mooring at Yardie Creek so their boats could be left there rather than having to trailer the bigger vessel with them on the tour.
It should also be noted that the safari tours operated all year round, whereas the McGregors operated Yardie Creek Tours only during the peak periods.
In her affidavit sworn 9 August 2000, Mrs McGregor states that her understanding at the time of the grant of the 1989 permit was that Yardie Creek Tours had been granted the exclusive right to conduct boat tours on Yardie Creek. It is clear from the materials that that was not so. It is also clear that as a result there was continuing and increasing friction between the McGregors and the safari tour operators, particularly the McLeods.
CALM became increasingly concerned about this obvious friction and the increase in scale of the safari tour operations and sought to rationalise the situation at Yardie Creek.
Towards the end of 1998, CALM determined to re‑evaluate the situation. The existing licences were then due to expire in mid‑1999 but CALM was unable to finalise its position by then and so each of the licences was renewed to the end of 1999.
The minutes of the Authority over this period reveal the position of the Authority had always been that there should be only one commercial operator in Yardie Creek, notwithstanding its reluctant approval for the three mentioned. This view was reiterated at a meeting of the Authority on 12 February 1999. The minutes note that since the Authority had made a decision that expressions of interest should be called for one operator to conduct a tour service at Yardie Creek, the then Minister for the Environment, the Hon Cheryl Edwardes, MLA ("the Minister") had raised the issue of Competition Policy, as a result of which the expression of interest document was re‑drafted so as not to restrict the number of operators who may conduct the service. The minutes go on to note however, that the expression of interest document still contained the same parameters so that at the end of the process the decision could still be made for there to be only one boat tour operator in the creek.
On 22 February 1999 the Minister wrote to the Minister for Tourism, forwarding a copy of the expression of interest document. She observed that the document allowed for operators to apply for all, or some of the trips available on Yardie Creek and hence for the possibility of several operators, but indicated that the preference of the Authority was for a single operator.
The advertisement inviting expressions of interest was published in April 1999 with a closing date of 1 June. The requirement was for all year round boat tour service(s) along Yardie Creek.
Paragraph 4.1 of the expressions of interest document noted that the opportunity existed for operators to apply to conduct all or some of the trips available of the all year round boat tour service(s) but that to minimise impact on the creek, the Authority had indicated a preference for the least number of operators possible.
On 12 November 1998 the Executive Director wrote to the Minister concerning the proposed expressions of interest document. He advised that the Authority had initially approved calling for expressions of interest on the basis of maintaining the status quo, that is, one launch operation and two safari tours, but following on‑site consultation with the Western Australian Tourism Commission, the Gascoyne Regional Tourism Association and the Exmouth Tourist Bureau and two of the licensed operators, that decision was reconsidered at the Authority's October meeting. At that meeting the Authority decided to advertise for only one boat operation but one more widely available for tourist access. He wrote that the Authority considered there were environmental benefits in containing the licence to one boat operation, noting that the tourism representatives unanimously supported one operation whilst the two safari tour operators supported the continuation of existing arrangements but with greater access for their operations. He said his purpose in writing to the Minister was to inform her of the Authority's preferred approach. He suggested that before proceeding to notify the three existing operators of the proposed expression of interest and the issuing of a licence to one boat operation only, the Minister might wish to inform the Minister for Tourism of this approach because it was likely there would be a reaction from the current safari tour operators and their supporters. The Minister for the Environment wrote to the Minister for Tourism accordingly on 8 December 1998.
The concern of CALM officers about the situation at Yardie Creek is reflected in a memorandum from the Exmouth District Manager dated 18 January 1999 (AB 63). He was responding to a request for information about the possibility of boat moorings being placed in the mouth of Yardie Creek. Having addressed that, he wrote that it had always been his understanding that the limit on moorings at the mouth of the creek was originally imposed by the Authority to minimise tour related boat traffic up the creek. Unfortunately the decision to allow safari tour operators to continue taking passengers up the creek in dinghies had compromised that strategy. He said that the circumstance that they no longer had the capacity to carry vessels on the roof of their vehicles because of larger numbers of passengers and bigger vehicles, had compounded problems associated with their activities and CALM's ability to accommodate their commercial and personal preferences.
He said that speaking as the local CALM Manager, he felt it would be a major step backwards if additional commercial tour operators were allowed to moor their vessels in the mouth of Yardie Creek. He then wrote:
"With expiry of current commercial licences occurring this year, we are in a position to alter the existing unsatisfactory licensing regime at Yardie Creek. That situation has caused much conflict between individual operators in the past, a circumstance unlikely to change if we continue with the current licence structure. This conflict has resulted in numerous instances of tourist dissatisfaction and an enormous drain on local CALM resources. I believe that we will be acting irresponsibly if we allow this opportunity for positive licence modifications to pass us by."
Yardie Creek Tours lodged its formal expression of interest in May 1999. The submission was for the total number of trips allocated, namely six boat cruises per day. That was said to be necessary for the venture to be financially viable. That point was queried in a letter to the McGregors from CALM dated 25 June 1999 in which further information was sought. In relation to that particular point, CALM enquired whether if more than one operator were to provide the all year round boat tour service, that would affect the viability of the McGregors' operation. In their reply dated 29 June 1999, the McGregors reiterated that their submission was for the total number of trips allocated and emphasised that to maintain their professional service, to meet the guidelines, to accommodate future visitor demand and to service the necessary capital expenditure, they required not only the total number of trips available, but also the revenue generated from total visitor numbers.
At the meeting of the Authority on 9 July 1999 the Acting Executive Director informed the meeting that four submissions had been received. Of those, three operators met the selection criteria. CALM's view that licensing one operator with the possibility of providing the maximum of six trips was the preferred option and the preferred proponent was Yardie Creek Tours. No final determination was made by the Authority at that meeting as it was felt clarification was still required of some points, such as whether the increasing number of coach tourists should be met by a larger boat or by two boats.
Those matters were subsequently clarified and following further discussion at the meeting of the Authority on 13 August 1999, the Authority resolved to approve the issue of one licence to Yardie Creek Tours for a five year period subject to certain stated conditions.
On 26 August 1999 the Executive Director wrote to the Minister for the Environment seeking her approval to issue an all year round boat tour service licence for Yardie Creek for the period 2000 to 2005. He outlined the results of the expression of interest process and the assessment of the submissions made. He observed that following the assessment of the submissions, a number of alternatives were considered, including the possibility of three operators providing the service. Further information had been sought from the proponents to determine whether that was a viable option. Each of the proponents indicated that their submission was based on the premise of being able to provide the total number of six trips, especially during the peak season. Therefore in order to provide the appropriate service and to be a viable operation, the maximum number of six trips would be required. The Executive Director wrote that due to the proponents' response to sharing the total number of trips, the preferred option was to licence one operator and based on the assessment of submissions, the preferred proponent was Yardie Creek Tours. He advised that the Authority had considered the proposal and approved the issue of one licence to Yardie Creek Tours and he recommended the Minister give her approval similarly. The Minister accepted that recommendation.
On 5 November 1999 the Executive Director wrote to the McGregors informing them of the outcome of the expressions of interest process and offering them a licence to conduct the all year round boat tour service for a five year period. A document setting out a series of conditions upon which the licence would be granted was attached. They included a condition that the terms and conditions of the licence may be changed by the Executive Director at any time (AB 150), that the licence would not give the licence holder exclusive access to CALM managed areas or facilities (AB 151) and that the Executive Director reserved the right to suspend, alter or cancel the licence for reasons of environmental protection or improving public safety or enjoyment (AB 151). Further specific conditions pertaining to the licence were that the vessel used would be capable of carrying a minimum of 30, but not more than 50 passengers per trip, that only one vessel could be used on the creek at any time, that not more than six trips per day would be undertaken and that the activity would be offered seven days a week, 12 months of the year.
Also on 5 November 1999 the Executive Director wrote to Breeden and the McLeods advising them that:
"… the Hon Minister for the environment and the National Parks and Nature Conservation Authority (NPNCA) has approved the issuing of one licence to operate the all year round boat tour service at Yardie Creek, Cape Range National Park for a period of five (5) years.
The number of licences have been limited to one in order to facilitate an appropriate level of tourism on Yardie Creek, without compromising conservation and visitor management objectives, and thus ensuring that tourism activities on Yardie Creek are sustainable."
He concluded that:
"Your application to the expression of interest process will therefore be used to renew your commercial activity licence for safari tours within Cape Range National Park, excluding the boat tour component…."
The McLeods expressed strong disagreement with the decision and that resulted in further discussions between them and CALM and the making of representations to the government.
These activities were reflected in a letter from the Executive Director to the Minister dated 18 November 1999. That letter was in the nature of a report, obviously in response to some enquiry from the Minister's office. The Executive Director set out in some detail the history of the process noting that following the strong disagreement expressed by the McLeods, they were offered a debriefing on the process. CALM's Tourism Development Manager, Mr Rod Quartermaine, together with the WATC Gascoyne Tourism Industry Development Manager travelled to Exmouth and met with interested parties including the McGregors and the McLeods. On 15 November 1999 the Minister for Tourism, members of his staff, a representative from the Premier's office and representatives from the Minister's office met with the McLeods, their legal representative and their consultant.
The Executive Director pointed out that in their submission and follow‑up information, the McLeods themselves had been quite clear that they were applying for a sole licence. Various complaints were raised by or on behalf of the McLeods and having set them out, the Executive Director detailed the responses made to them. In passing, I note that in relation to questions about the environmental impact, the Executive Director noted that CALM is always required to adhere to the "precautionary principle", by which is meant that where solid empirical data about environmental issues is not available, then any decisions should err on the side of caution. The Authority's determination to restrict the number of trips to six and to stipulate that they occur between the hours of 10 am and 4 pm was consistent with the application of the precautionary principle.
He concluded by pointing out that the process had been carried out appropriately, the necessary approvals for the issue of the licence had been given, all parties had been notified and the successful proponents had been offered the licence. They had verbally accepted the conditions and had until 26 November 1999 to provide their formal acceptance of the offer. The Executive Director then added (AB 167):
"Subject to their application being consistent with the licence conditions, I will issue the licence. Far from being in the embryonic (sic) the process is nearly completed.
The review and EOI process has been lengthy and extensive. The NPNCA has overseen the process and reached a decision. The Chairman of the NPNCA has indicated that the process has been appropriate. I advise that I believe the process has been open and accountable and that the outcome is a just decision. Officers of the WA Tourism Commission and CALM have behaved in a manner beyond reproach during this recent campaign of misinformation and innuendo."
The licence was signed by the Acting Executive Director on 2 December 1999 for the period 1 January 2000 to 31 December 2004 (sic) (AB 170).
In the meantime, on 2 December the Minister met with the McLeods and also with the McGregors. The meetings were arranged by the Minister for Tourism who had received strong representations from the McLeods and others in Exmouth with regard to CALM's licence conditions that precluded Ningaloo Safari Tours from undertaking a personalised dinghy tour on Yardie Creek as part of their "Top of the Range Tour". The results of these meetings were set out by the Minister in a letter to the Chairman of the Authority dated 10 December 1999 (AB 175).
According to the letter, the Minister explained to the McLeods that she had approved the licensing arrangement but was willing to hear representations from them. The McLeod's position was that they had only ever wanted to continue the personalised dinghy tour on Yardie Creek and had been seeking permission for a mooring in the creek and the right to undertake two boat trips per day for several years. (They said the only reason they had submitted a proposal for an all year round boat tour was because of legal advice that that was their only option). There was discussion about the environmental impact of the tours and the decision to reduce the level of commercial boating activity on the creek. It was suggested that although a decision had been made it was reversible. It was further suggested that the expression of interest document had been written in a way which precluded the McLeods from putting in a bid to enable them to continue to operate a personalised service for their safari tour customers. The McLeods indicated they would be satisfied with approval for them to continue with their existing level of operation of one trip a day with the capacity to extend it to two trips a day as demand increased.
In her letter the Minister advised that immediately following that meeting she met with the McGregors. They had explained they were satisfied with the process and they had accepted, signed and returned the licence form. They expected to be the sole boat tour operators and insisted that they needed all the passengers delivered by safari tours and bus operators if their business was to be viable and they were to meet what they considered to be the somewhat onerous conditions of the licence. They explained their intention of being able to provide a regular passenger service on the creek seven days a week, capable of catering for any projected increase in tourist numbers that would result from bituminising the North West Cape to Yardie Creek Road. There was discussion about the rigorous nature of the conditions and the limitation on the number of craft which could be used.
The Minister wrote that having considered all of the material, she was confident that in relation to the process, both the Authority and CALM had undertaken their responsibilities with due diligence and in a proper manner and she had therefore concluded that a licence to conduct boat tours on Yardie Creek should be issued to the McGregors. She then went on to say that:
"However, in light of some of the comments, in particular the claims of unregulated boating activity and unworkable licence conditions, I would like the NPNCA and CALM to give further consideration to the matter of commercial boating activity on Yardie Creek. In particular I wish to be advised about the following matters:
1.Whether improved regulation and management of visitor activity adjacent to, and on Yardie Creek, would provide an opportunity to increase boating activity.
2.The adequacy of scientific evidence for the decisions to reduce the level of commercial boating activity on the creek and the need for further scientific studies to assist future decisions.
3.The likely trends in tourist demands for access to the creek and the surrounding areas and the basis of those projections.
4.Whether the NPNCA is willing to consider allowing two or more boats on the creek at the same time or reinstitute the hours of operation from 9.00 am to 4 pm to enable a maximum of six trips, at one and a quarter hours per trip, to be undertaken.
5.The conditions that the NPNCA may consider environmentally acceptable to enable a safari tour operator to undertake one or more trips on the creek using a small craft.
6.In the event the NPNCA can establish conditions under point 5, it is willing to consider additional moorings on the Creek.
7.The procedure that the NPNCA considers acceptable to enable the processing of a safari tour operator to undertake one or more trips on the creek using a small craft."

It is apparent that the last three matters listed reflected concerns of the McLeods.
This letter was discussed by the Authority at its meeting in the morning of 10 December 1999. The minutes show there was very extensive and detailed discussion about the matters raised by the Minister. In relation to scientific studies concerning the environmental impact of commercial activities, it was noted that decisions had been made based on the level of risk and the precautionary principle. The minutes clearly show the members were committed to there being only one licence and a maximum of six boat trips per day. There was obvious concern about lobbying having been undertaken after the decision was made. The meeting concluded with the passing of a resolution that the Authority write to the Minister indicating the Authority felt that any temporary extension to the safari licences was a matter for the Minister's determination (AB 183).
On 17 December 1999 the Acting Executive Director wrote to the McLeods advising that the Minister had requested that he respond to their request to amend their safari licence to include access by boat to Yardie Creek. He informed them that the Minister had requested further information and advice from the Authority which had indicated that it would respond in early February. He said that on the basis that further information would be provided to the Minister, he was "with the approval of the NPNCA" extending the McLeod's current licence and associated conditions until 28 February 2000. He cautioned them however, that a five year licence had been issued to Yardie Creek tours and that the McLeods should therefore put operational arrangements in place to enable the continuity of the creek component of their tours from 1 March 2000 using those facilities.
A similar extension of licence was given to Breeden.
There is before us an affidavit of Roderick Keith Quartermaine sworn on 12 July 2001 in which he deposes inter alia to his meeting with the McGregors in Exmouth on 10 November 1999. At par 9 he states that at that meeting he discussed the licence conditions with the McGregors. He says they asked whether they could obtain from CALM a letter confirming that their licence was the only licence that would be offered for boat tours on Yardie Creek. He deposes that he told them that the issue of their licence could not prevent other licences being issued and said he would follow the matter up and have that advice confirmed in writing but he could not recall having done so.
The Chairman of the Authority wrote to the Minister on 16 December 1999 advising that her correspondence had been considered at a meeting of the Authority but there were a number of issues arising from it which required further investigation and technical advice. The Authority would endeavour to answer the questions in detail following its next meeting in January.
The letter went on to say that in general the Authority was of the view that the licence for the all year round boat tour service should immediately be issued (I interpolate that as noted above the licence had already issued on 2 December) and that the Authority was still of the view that it would prefer to see only one boat operate on Yardie Creek and that there should be increased management efforts by CALM to ensure there are no other powered boats operating on the creek.
The Chairman also wrote that in pursuing the further technical advice and information sought, the Authority would still need to couch any response to the Minister's questions within its overall approach of acting in a precautionary way with the objective of ensuring that risks to the environment were minimised.
He further pointed out that the Authority was mindful that the current licences were to expire on 31 December 1999 and that if the boat operation of the McGregors was licensed as approved, and the current licences on offer to the safari operators remained on offer, then the safari boat trip component of the latter would have to cease on that date. He then continued:
"If you countenance any prospect of the safari operators being given approval to operate one or more boat trips, that component of the tour would need to be extended till that matter is finally resolved. This is not the preferred outcome of the Authority, however it would not oppose a temporary extension of the existing licence under those circumstances."
In his letter dated 17 December 1999 the Acting Executive Director asked the McLeods to indicate acceptance of the extension of their current licence by signing and returning a copy of his letter by Thursday 30 December 1999.
The extension of the licence was signed by the Executive Director on 21 December 1999 (AB 185).
On 6 January 2000 the McGregors wrote a strongly worded letter to the Acting Executive Director registering their "disgust" at the "intolerable position" that had been created and the disregard for their rights as holders of the licence dated 2 December 1999. They set out their understanding of the history of the matter and noted in particular the determination of the Authority that as a matter of policy the maximum number of commercial boat tours on Yardie Creek should be not more than six per day and that only one operator should be licensed. They wrote that it was extraordinary that just six days after the decision of the Authority, CALM had in renewing the safari tour licences, purported to "amend" the licences to include the right to conduct a commercial boat tour on Yardie Creek until 28 February 2000. The purported renewal of those licences with continuing rights to conduct tours would mean that in conjunction with the six trips per day licensed to Yardie Creek Tours, CALM had licensed three operators to conduct between them a total of eight trips per day. That position was totally inconsistent with the determination of the Authority made on 13 August 1999 and with the terms of the approval granted by it for the issue of a single boat tour licence.
The McGregors made specific reference to the fact that the safari trip licences had purportedly been renewed "with the approval of" the Authority. They said that their enquiries with the Chairman had established that no such approval had been given. They intimated that since s 99 of the CALM Act required licences could only be issued with the approval of the Authority as well as the Minister, it appeared that CALM had acted in contravention of the CALM Act and in "complete disregard" of their rights. A copy of that letter was sent to the Authority.
The Authority met again on 14 January 2000. There was again extensive debate about the matters raised by the Minister and the question of the Yardie Creek licences generally. The McLeods had been invited to attend the meeting to express their concerns. No notice had been given to the McGregors.
The McLeods and their legal representative did attend the meeting and explained their concerns. There was particular emphasis on the economic ramifications of them being unable to provide the creek boat trip component from their own resources rather than having to rely upon the Yardie Creek Tours boat trips. When the McLeods and their lawyer left the meeting there was further discussion about the financial and environmental issues. The general feeling seems to have been that the financial considerations were a matter for the parties; the concerns of the Authority related to the environmental considerations. A number of concerns were raised with respect to the latter. It was resolved to write to the Minister expressing those concerns.
There is no indication in the minutes that the letter of 6 January 2000 was before the meeting.
The Acting Executive Director responded to the McGregors' letter on 17 January 2000. In his letter of that date he advised that contrary to their understanding, the Authority had advised the Minister that it would not oppose the amendments to the safari tour licences until all the matters raised by her were addressed. Subsequently the Minister had approved the amendments until 28 February 2000 and the safari licences were amended accordingly with the approval of both the Minister and the Authority.
The Chairman of the Authority reported to the Minister by letter dated 8 February 2000 on the outcome of the meeting on 14 January.
On 23 February 2000 the Minister wrote to the Chairman of the Authority advising that while recognising the potential management benefits of limiting activities on Yardie Creek to one licence, she believed that the status quo should remain until further scientific investigation into the potential impacts of boating activity on native fauna was known and fully understood. She referred to her understanding from the correspondence that the Authority's primary justification for reducing the number of actual boat trips on the Yardie Creek was the precautionary principle. She said however, that given that the Authority's advice indicated that the scientific basis for setting the level of boating activity on the creek was limited, the continuation of safari boat trips should not constitute a significant environmental risk in the short term. She expressed the belief that a specific, rigorous study of wallaby and bird populations in the creek, commenced as soon as possible before visitor numbers increased with the sealing of Yardie Creek Road in 2002, would be helpful in finalising the licensing regime for the Creek. At the same time there could be monitoring and evaluation of other impacts prior to the sealing of the roads. She also noted that there was some scope to manage and regulate boating activity in the creek and that some management intervention and presence could have a positive effect on limiting environmental pressures. She then concluded (AB 214):
"I would appreciate the NPNCA extending the licences of the two safari boat operators for up to two years while further research is being undertaken.
I have referred this matter to you again as the CALM Act requires the formal approval of the NPNCA to have the two existing licences extended."
In her affidavit Mrs McGregor says that by early March 2000 she had become aware that the McLeods were continuing to lobby the Minister, CALM and the Authority to grant further licence concessions that would be inconsistent with the rights of the McGregors under what she described as "its five year exclusive boat tour licence for Yardie Creek". As a consequence and knowing that the Authority usually met on the second Friday of each month, she prepared a submission concerning the conservation issues pertaining to Yardie Creek. It was her intention to attend a meeting of the Authority in Perth on 10 March to present the submission. On 1 March 2000 she sent a facsimile to the Secretary of the Authority requesting that arrangements be made for Yardie Creek Tours to make a 20 minute presentation at the 10 March meeting. She received no response.
The Acting Secretary of the Authority at that time was Grace Silvestro, an officer of the Forest Products Commission. In her affidavit sworn 12 July 2001, Silvestro deposes that part of her duties as Acting Secretary was to arrange for members of the Authority to receive an agenda and agenda papers for each meeting. It was her habit to provide a copy of those documents to each of the members approximately one week before the scheduled date of the meeting. She did that in respect of the meeting scheduled for 10 March 2000. Either late in the afternoon of 9 March or early in the morning of 10 March 2000 she received a facsimile coversheet from the McGregors, together with a copy of the presentation. She deposes that having received the presentation she had an appropriate number of photocopies made and placed a copy on the table at the place for each member and other persons expected to attend the meeting. These documents were in place on the table before the meeting commenced at 9.15 am. Due to late receipt of the submission it was not included on the agenda as a separate specific issue.
It seems the McGregors' facsimile presentation did not reach Ms Silvestro until 8 or 9 March because it had been sent to the general facsimile number for CALM. In fact it seems the first facsimile did not reach her at all.
As Mrs McGregor explains in her affidavit, on 8 March 2000, cyclone "Steve" was approaching Exmouth which was on cyclone alert. It became apparent that the McGregors would not be able to travel to Perth to attend the Authority meeting on 10 March. She therefore faxed the Secretary again on 8 March advising of that and requesting that the written presentation be provided to the Authority members for consideration at the meeting. She received no response to that facsimile and so telephoned Ms Silvestro. Ms Silvestro advised her that the outline presentation had been received and photocopied and would be placed before the Authority members for consideration at the meeting.
The minutes of the meeting of Friday 10 March 2000 show that the Minister's letter was discussed. There is no mention of the material received from the McGregors. In the course of the discussion, one of the members queried the legal ramifications of allowing two operators. One of the CALM representatives advised that the McGregors' licence did not offer sole operator status.
It was resolved to write to the Minister raising the various points discussed at the meeting and indicating that the Authority was "not opposed" to the extension of existing licences for safari operators.
The Chairman of the Authority wrote to the Minister on 17 March 2000 advising of the outcome of the meeting on 10 March. He began with the observation that the Authority had consistently indicated its preference for only one operator to be licensed for a range of management reasons and as a precautionary approach to managing impacts on fauna on and around the creek. He went on to say that the Authority acknowledged that further scientific evidence may help define the optimum number, frequency and the times of operation of trips on the creek for managing impacts on the fauna. He referred to the difficulties of obtaining further scientific advice and to the fact that there were a number of other issues in addition to scientific advice that needed to be considered, including the quality of the experience of (sic: for) the visitors and the aesthetics of having more than one boat on the creek. He then wrote (AB 256):
"Given your request, the Authority is not opposed to the two safari operators, who responded to the expressions of interest, having existing licences renewed for a two year period, at the current level of one trip per day each while further scientific investigation and monitoring of impacts is undertaken. This leaves the maximum trips per day at the current number of eight. The hours of operation can be retained at the existing times of 9 am to 4 pm."
That advice was obviously acted on quite quickly because by 22 March the Acting Executive Director was able to write to Breeden and the McLeods advising that their licences had been renewed for a further two years to expire on 31 March 2002.
The McGregors were informed of the two year extension of the safari tour licences, by letter from the Acting Executive Director on 22 March 2000, in which he also made the comment that the Authority, in not opposing the renewal of the licences, was of the view that arrangements in respect of them should continue while monitoring was being undertaken.
In their affidavits respectively sworn on 2 November 2000 and 20 July 2001, Rhonda McGregor and Bernard McLeod set out details of their business operations relating to Yardie Creek and the financial ramifications of the licence situation to their businesses.
The gravamen of the applicants' contentions in these proceedings is that after an extensive process of expressions of interest, they had been granted an exclusive licence to operate boat tours on Yardie Creek from 1 January 2000 to 30 December 2005. All three shortlisted applicants had required exclusivity as a condition of taking a licence in the terms offered. That was because of their view that the commercial operation would not otherwise be financially viable. The applicants' argument is that following the grant of an exclusive licence to them, a series of decisions was made, granting to the two safari tour operators initially short "extensions" and then the grant of a two year licence. These decisions were made without notice to the McGregors and without affording them an opportunity to be heard, notwithstanding that the decisions allowed the two safari tour operators to operate in competition with them, and despite the significant economic and environmental considerations militating against multiple tour operations.
The point from which the applicants start is that the licence granted to them was exclusive. That proposition is disputed by the McLeods. It is contended on their behalf first, that the McGregor's licence was not exclusive, but even if it was at the time, the general conditions allowed the Executive Director to change that.

Whether applicants' licence exclusive

The nature and scope of the licence granted is to be ascertained from its terms. The offer of the licence for 2000 to 2005 was made by letter from the Executive Director dated 5 November 1999 (AB 147). The licence itself was one to enter upon and use land and waters within Cape Range National Park in order to operate an all year round boat tour service within Yardie Creek. The licensee expressly acknowledged that the licence would be subject to the provisions of the CALM Act and all subsidiary legislation made under it and to the conditions and restrictions set out in the schedule attached to the licence. Certain conditions are printed on the licence itself. I have referred above to condition 15 which refers to the power of the Executive Director to vary the terms and conditions of the licence at any time under the CALM regulations and to condition 24 which states the licence does not give the holders exclusive access to CALM‑managed areas or facilities. The schedule contains 25 conditions, none of which say anything about the licence being exclusive in the sense contended for by the applicants.
There is nothing in the terms of the licence (including the conditions) to support a construction the licence was exclusive.
It was true the view of the Authority had consistently been that there should only be one commercial operator in Yardie Creek, but it is also true that even while it held that view it had previously, however reluctantly, approved two safari tour licences in addition to the McGregors' licence. What preference the Authority had and what it actually approved are, I think, two different matters. A decision to grant only one licence is not necessarily a decision to grant an exclusive licence.
The newspaper advertisements and the expressions of interest document of April 1999 itself were not cast in terms of the grant of an exclusive licence although they did indicate a preference by the Authority for "the least number of operators possible".
The letter to the McGregors offering them the licence was dated 5 November 1999. They accepted the offer on 16 November. In the meantime, on 10 November, they had a meeting with Quartermaine. They sought from him a letter from CALM confirming theirs was the only licence that would be offered for boat tours on Yardie Creek. He told them that the issue of their licence could not prevent other licences being issued.
There can in my view be no doubt that the licence granted to the McGregors was not an exclusive licence.

The impugned decisions

The applicants attack eight decisions, which they identify as:
(1)that made by the Authority on 10 December 1999 to delegate to the Minister the role of determining whether or not to approve the issue by CALM of offers to renew the permits to the McLeods and Breeden respectively to conduct their safari boat tours ("the Authority's December decision);
(2)that made by CALM in December 1999 to offer to renew the McLeod and Breeden permits until 28 February 2000 ("the CALM December decision");
(3)that made by CALM in February 2000 to offer to renew the McLeod and Breeden permits until 31 March 2000 ("the CALM February decision");
(4)that made by the Authority on 10 March 2000 to write to the Minister advising that the Authority was "not opposed" to the renewal of the McLeod and Breeden permits for a further two year period ("the Authority's March decision");
(5)that by CALM on or about 22 March 2000 to offer to renew until 31 March 2002 the permits of the McLeods and Breeden to conduct the safari boat tours ("the CALM March decision");
(6)that made by CALM on 6 April 2000 to issue to the McLeods, by way of renewal of existing permit, a licence to conduct the safari boat tours for the period 1 April 2000 to 31 March 2002 ("the CALM April McLeod decision");
(7)that made by CALM on 6 April 2000 to issue to Breeden, by way of renewal of existing permit, a licence to conduct the safari boat tours for the period 1 April 2000 to 31 March 2002 ("the CALM April Breeden decision"); and
(8)that by CALM on or about 24 July 2000 to issue to Breeden, by way of renewal of existing permit, a licence to conduct the safari boat tours for the period 1 April 2000 to 31 March 2002 ("the CALM July decision").

It would be contrary to principle to grant the relief sought in respect of decisions the effect of which is no longer operative. Some of the relevant permits or licences have expired. The remedies are discretionary. The discretion is not to be exercised to resolve matters no longer moot, so that to grant the remedy would be futile (R v Aston University Senate; ex p Roffey [1969] 2 QB 538; Malloch v Aberdeen Corporation [1971] 2 All ER 1278; Re David Smith and WA Development Corporation; ex p Rundle (1992) 5 WAR 295, 321). The first three, and the fifth and sixth decisions identified above fall into that category.
I consider the proper way to approach the application is to focus upon the substance of the applicants' complaint, which is the issue of the two year licences to the McLeods and Breeden ("the safari tour licences") following the grant of the licence to the applicants on 2 December 1999. Their point is, in essence, that the grants of the safari tour licences were vitiated by denying procedural fairness to the McGregors. This is alternatively formulated as jurisdictional error of law by reason of denial of procedural fairness. That formulation is drawn from Re Refugee Tribunal & Anor; ex parte Aala (2000) 176 ALR 219 in which the High Court held that denial of procedural fairness will result in a decision made in excess of jurisdiction. Gaudron and Gummow JJ accepted (at [40] ‑ [41]) the statement of Brennan CJ in Kruger v Commonwealth (1997) 190 CLR 1, 36 that when a discretionary power is statutorily conferred on a repository, the legislature is to be taken to intend that it be exercised reasonably, from which their Honours said it followed that if an officer of the Commonwealth exercised a statutory power without according procedural fairness (where the statute did not limit or exclude that obligation) the officer would exceed jurisdiction in a sense necessary to attract prohibition under s 75(v) of the Commonwealth Constitution (see also Kirby J at [142]). Hayne J said (at [170]) that putting it in terms of jurisdiction:
"… the authority to decide is an authority which may be exercised only if procedural fairness is extended."
The first question here I think is whether CALM or the Authority had an obligation to afford procedural fairness to the McGregors in connection with applications by the McLeods and Breeden for safari tour licences. Senior counsel for the McLeods and counsel for the Executive Director contended there was no such obligation and the McGregors have no standing. They further submit that the McGregors' submissions were in fact before the Authority on 10 March 2000. On the other hand it is put by counsel for the McGregors that CALM and the Authority were obliged to afford the McGregors procedural fairness because the impugned decisions affected their livelihood and financial interests.
For a proper consideration of these competing submissions it is convenient here to refer more specifically to the evidence.
In her affidavit dated 2 November 2000, Mrs McGregor points out (at par 14) that it was a requirement of the expressions of interest guidelines for the all year round boat tour licence that the service be provided 12 months of the year, seven days of the week, with a maximum number of six trips to be conducted per day with a vessel capable of carrying a minimum of 30 and a maximum of 50 passengers. She states that the conditions with respect to a seven day week, 12 months of the year service, were much more onerous than the conditions under which Yardie Creek Tours had until then been conducting its boat tour business, as until then the McGregors had been free to decide on what days of the week and what months of the year they would operate the business. She states that in order for the business to remain economically viable if required to operate all year round, it was in her view essential that Yardie Creek Tours be allocated the entirety of the six trips per day maximum - that is that Yardie Creek Tours have sole operator status with respect to boat tours on Yardie Creek so that the viability of the business would not be threatened by the McLeods or Breeden or any other commercial competitor. The McGregors' views on this were made clear to CALM and the Authority.
Mrs McGregor refers to a letter from the Minister to the Minister for Tourism dated 23 September 1999 which confirmed that the three proponents to the expressions of interest all indicated that the viability of the operations they proposed would be dependent upon the opportunity of providing a total of six trips per day.
At par 57 of her affidavit, Mrs McGregor asserts that the implications for Yardie Creek Tours of the continuation of the safari tour licences with the Yardie Creek boat tour component is that Yardie Creek Tours stands to lose up to $60,000 per year in revenue. She claims that Yardie Creek Tours was then currently losing around $34,000 per annum as a consequence of the McLeod's operation of boat tours on Yardie Creek. That figure is arrived at by calculating the differential of the amount Yardie Creek Tours charges the McLeods for the safari tour customers (a discount of 15 per cent). The calculation is that there are some 2000 people per year who are customers of the McLeods for which Yardie Creek Tours charges $17 per adult, whereas the full scheduled fee is $22 per adult (that being charged by the McLeods). Mrs McGregor states that to the best of her knowledge, Breeden has not conducted any boat tours since December 1999 despite the extension of his safari tour licence.
An added difficulty referred to by Mrs McGregor is the fact that Yardie Creek Tours is obliged to stand available to provide a seven day per week, 12 month per year boat tour service, whereas the McLeods and Breeden have no obligation to provide any particular level of service. Thus, Yardie Creek Tours must bear the overhead cost of providing the service during unprofitable periods.
Bernard Neil McLeod ("Mr McLeod") swore two affidavits both on 20 July 2001. He and his wife Coralie Joan McLeod ("Mrs McLeod") are the sole directors of Ningaloo Safari Tours (WA) Pty Ltd ("Ningaloo Tours"). Ningaloo Tours conducts a number of tours in the region, the main one being that described as the "Top of the Range Safari Tour". That is a comprehensive one day tour of the North West Cape region, including the Cape Range National Park. The tour departs from and returns to Exmouth and covers the Cape Range area from east to west and includes guided tours through various canyons and other areas of historical and natural significance. A key component of the tour is a boat cruise on Yardie Creek. That is conducted with the use of a flat bottomed open top aluminium vessel transported to the Creek everyday on a boat trailer. The vessel can carry up to 14 passengers. The Top of the Range Safari Tour is usually conducted no more than once daily. Ningaloo Tours does not have a mooring on Yardie Creek for the vessel.
Mr McLeod disputes that Ningaloo Tours carries some 2000 passengers per year on the Creek. His calculations are that for the financial years ended June 1998 to 2001, Ningaloo Tours has carried approximately 1375, 1276, 1646 and 1667 paying passengers respectively on its Top of the Range Safari Tours.
Mr McLeod deposes that his enquiries reveal that the price of the boat tours conducted by the applicants has increased since the date of Mrs McGregor's affidavit to $25, so that with a 15 per cent discount, the cost to Ningaloo Tours of using the applicants' services would be $21.25 per head. If Ningaloo Tours was obliged to use the applicants' service as its Yardie Creek component and had to pass on the cost of that boat tour to its customers, the tour price would have to be increased by 15.7 per cent. He expresses the opinion that such an increase in the tour cost would have a significant effect on the number of people wishing to go on the tour, would reduce Ningaloo Tours' competitiveness and have an adverse impact upon its profitability and viability. If Ningaloo Tours were to bear the costs of using the applicants' boat as a component of its tour, that would effectively have the same result as reducing Ningaloo Tours' revenue by $21.25 per head at a net cost of some $35,000 per annum. He states further that the Yardie Creek boat cruise is one of the main attractions of the Top of the Range Safari Tour so that were Ningaloo Tours not to offer that, it is likely there would be far less demand for the tour. He asserts that in his view it would not be a viable option to conduct the tour without the Yardie Creek boat tour component. The Top of the Range Safari Tour accounts for approximately 95 per cent of Ningaloo Tours' business in terms of customer numbers.
Amongst other considerations referred to by Mr McLeod is his assertion that there is no public transport to and from Yardie Creek, and the McGregors do not offer a transport service from Exmouth to the Creek and back. He says that for that reason, a significant number of the tourists who go on the Ningaloo Tour would not otherwise have access to Yardie Creek and so if Ningaloo Tours did not operate that, many tourists would not visit Yardie Creek at all.
In his second affidavit sworn on 20 July 2001, Mr McLeod sets out various factors going to his claim that the McLeods would be seriously prejudiced were the applicants' application to be granted because, in short, they have incurred substantial costs and commitments in operating on the assumption that the licences under which they are operating are valid and would continue until at least February 2002.
I return now to the issues of the applicants' standing and interest.
As Mason J (as he then was) said in FAI Insurances Ltd v Winneke (1981‑1982) 151 CLR 342 at 360:
"The fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power (Twist v Randwick Municipal Council; Heatley v Tasmanian Racing and Gaming Commission. The application of the rules is not limited to cases where the exercise of the power affects rights in the strict sense. It extends to the exercise of a power which affects an interest in a privilege (Banks v Transport Regulation Board (Vict) or which deprives a person of a 'legitimate expectation', to borrow the expression of Lord Denning MR in Schmidt v Secretary of State for Home Affairs, in circumstances where it would not be fair to deprive him of that expectation without a hearing (Salemi v MacKellar [No 2]." (Footnotes omitted).
and in Kioa v West (1985) 159 CLR 550, his Honour said (at 584):
"The law has now developed to the point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to a clear manifestation of a contrary statutory intention."
(see also Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653, per Deane J; Annetts v McCann (1990) 170 CLR 596 at 598, per Mason CJ, Deane and McHugh JJ).
Later, on the same page (584), Mason J made it clear the duty arises only in respect of decisions which affect rights, interests and expectations "in a direct and immediate way."
In Kioa, Brennan J said at 619:
"The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation. It is not the kind of individual interest but the manner in which it is apt to be affected that is important in determining whether the presumption is attracted.
If a power is apt to affect the interests of an individual in a way that is substantially different from the way in which it is apt to affect the interests of the public at large, the repository of the power will ordinarily be bound or entitled to have regard to the interests of the individual before he exercises the power."
Malcolm CJ pointed out in Re Real Estate and Business Agents Supervisory Board; Ex p Cohen (1999) 21 WAR 158 at 184, that in this context rights and interests include livelihood and financial interests.
Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446 and Brack v Wills [1977] 1 NSWLR 456 are examples of cases where courts have recognised a financial interest as sufficient to attract the rules of procedural fairness. In each of those cases the financial interest was one directly and immediately affected by the decision. In Dunlop a planning authority resolved to approve a development application to build two eight‑storey tower blocks adjacent to the plaintiff's land, without giving him an opportunity to be heard in opposition to it. The effect was that whilst prior to the resolutions the plaintiff had been free to build on his land without limitation by building line or restriction of storeys (not exceeding eight), subject to obtaining the necessary consents, after the resolutions he could not build on some parts of his land at all and where he could, there was a significant diminution in the height to which he could build, no matter what consents he obtained.
In Brack v Wills the issue was whether, in granting a conditional application for a spirit merchant's licence, the Magistrate was obliged to afford an opportunity to be heard to a person who had a pending application for a similar licence in the same neighbourhood.
The McLeods rely upon the decision of Lindgren J in Big Country Developments Pty Ltd v Australian Community Pharmacy Authority (1995) 132 ALR 379, Pharmacy Restructuring Authority v Martin(1994) 53 FCR 589 and Corio Bay & District Private Hospital N.H. Pty Ltd v Smith (1998) 87 FCR 37 for the proposition that an economic or financial interest is not sufficient to establish standing. These cases, however, are distinguishable from the present for the reason that in each of them the relevant commercial or financial interest was held not to be sufficiently direct or immediate. In Big Country the applicant was the owner of a shopping centre in which it leased a shop to a pharmacist by the name of McLeod. The lease was due to expire. McLeod wanted to relocate to another shopping centre about one kilometre away. He could not do so without the approval of the Australian Community Pharmacy Authority ("ACPA"), which administered the statutory scheme governing the distribution of pharmacy businesses in Australia. ACPA approved the move without giving Big Country an opportunity to be heard on the application. The point was that under the statutory scheme, if McLeod continued in his current premises no pharmacy could be established in the other shopping centre and if he relocated, no pharmacist could move into his current premises.
Lindgren J considered (386) that although Big Country's commercial interests were within the "ripples of affection" (an expression found in the judgment of Brennan J in Re McHattan and Collector of Customs (NSW)(1977) 18 ALR 154, 157) they were too remote to bring it within the meaning of the words "person aggrieved" in s 3(4) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
In the Pharmacy Restructuring Authority case, the Full Court of the Federal Court allowed an appeal against the decision of a single Judge setting aside a decision by the Pharmacy Restructuring Authority to recommend approval to relocate a pharmacy to a location within two doors of the respondents. The two premises, albeit in the same street were, however, separated by a railway line and railway station. On the issue of procedural fairness the Court said (8):
"There are cases where a statutory authority, charged with the duty of considering an application to use premises for a particular purpose, is expressly obliged to publicise the receipt of the application and to consider objections.
Liquor legislation is a well known example. There are cases where such an obligation is implied by the scope and the purpose of the legislation. But we do not know of any general principle to the effect that a statutory authority charged with the duty of considering an application is obliged by the principles of procedural fairness to notify and hear everybody whose economic interest may be damaged by an approval. To promulgate a general rule imposing such an obligation would be to visit upon statutory decision makers a potentially massive task of indeterminate reference. In the present case, nothing is to be implied from the scope and purpose of the Act. The relevant provisions are not concerning (sic) with minimising competition in the pharmaceutical industry but with reducing the Commonwealth's financial burden in providing pharmaceutical benefits while maintaining an acceptable level of community service. In the absence of authority, we are not prepared to hold that, if it had a discretion about its decision, the authority had any obligation to notify or hear pharmacists, non‑parties to the application for approval, merely because an approval might commercially damage them.
However, even if we took a different view about the matter, in this case the Authority has no discretion. The guidelines govern its recommendations to the Secretary. And sub‑para (d) provides that 'approval … shall be recommended' where the new premises are located not more than 500 metres 'by normal access routes', from the old. If, as we have held, the term 'by normal access routes' means 'by at least one normal access route', it is clear that the premises at 20 John Street are located not more than 500 metres, by a normal access route, from the old. The Authority is bound to recommend approval. There would be no purpose in the Authority affording the first respondents a hearing."
I respectfully agree with the statements of general principle in these passages.
Corio Bay concerned the question whether the commercial interest of a landlord of a nursing home in respect of which subsidised places were allocated under the Aged Care Act 1997 (Cth) entitled it to be heard in respect of a decision to reallocate those places to another nursing home. Merkel J held it did not. The "interest" of Corio Bay was, at best, an economic interest which was only indirectly and consequentially affected by the decision. Again it is important to appreciate precisely what the interest was. Corio Bay was the owner of certain premises at Geelong. Lakeaura Pty Ltd leased the premises on which it operated a private nursing home. The lease was due to expire on 31 December 1997. In 1995 Lakeaura sold the business to Silkcourt Pty Ltd and assigned its interest in the least to Silkcourt. In October 1997 Silkcourt contracted to sell the business to the owner of a nursing home at Whittingham, as from 31 December 1997, when the lease was due to expire. Silkcourt was an approved provider of aged care under the Aged Care Act for 30 places allocated to it under that Act in respect of the Geelong premises. Silkcourt applied for the transfer of the 30 places to the purchaser, so as to enable the latter to increase its allocation of places under the Act in respect of its nursing hospital at Whittingham.
Merkel J considered the applicant's claimed interest "problematic" and misconceived. The allocation of places was not to the premises but to the lessee as an approved provider. If the owner had any entitlement to prevent a transfer it could only have arisen under the lease - and as that had only nine days to run it was of little significance. The Aged Care Act did not, directly or indirectly, recognise that the owner of premises in respect of which places were allocated, had any entitlement or interest which would justify an expectation that it would be afforded an opportunity to be heard prior to an approval to transfer places away from the premises.

Merkel J drew attention to the distinction in this area between the natural justice cases and those on standing, noting that even if a person had standing to challenge a decision once made, it did not necessarily follow that they had an entitlement to be heard before it was made - although he opined (particularly in cases of commercial interests) it would be difficult to conceive of circumstances in which a person with no standing to challenge a decision would be entitled to be heard on the making of it.
It is clear from these and the authorities generally that a mere economic or financial interest is not sufficient to establish standing nor a right to be heard (that is to say, to give rise to an obligation on the decision‑maker to give the affected person an opportunity to be heard). But it is also clear that such an obligation may arise where the decision affects such interests in a direct and immediate way.
In my opinion the commercial and financial interests of the McGregors did fall within that category. The grant of the two year safari tour licences was apt to affect their interests in a way that was substantially different from the way in which it was apt to affect the interests of the public at large and the McGregors were accordingly entitled to an opportunity to be heard before the decisions were made.
On the other hand, I do not accept the submission that the circumstances gave rise in the McGregors to a legitimate expectation that they would be afforded procedural fairness before any other licence was granted allowing another person to conduct business in competition with them. As I have already found, the licence was not an exclusive licence. The granting to the McGregors of a licence which entitled them to undertake all of the six trips a day then available, was not in the circumstances an undertaking nor guarantee that that number was immutable (and, of course, to that point eight trips per day had been approved). They had been told by Quartermaine that the grant of the licence to them did not preclude the grant of a licence to another. And the expressed preference of CALM and the Authority that there should be only one licence fell a long way short of the sort of government commitment the High Court found to arise from the United Nations Convention on the Rights of the Child in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

What did procedural fairness require?

The content of procedural fairness depends upon the statutory context and the circumstances of the case (Russell v Duke of Norfolk [1949] 1 All ER 109, 118). Notice that a decision will be made that may adversely affect an individual's interests is a minimum requirement of procedural fairness (Ackroyd v Whitehouse (Director of National Parks and Wildlife Service) (1985) 2 NSWLR 239). The fact that CALM and the Authority had merely expressed a preference for one operator was not itself enough to give rise to a legitimate expectation. However, given the terms of the invitation for expressions of interest and the nature of the establishment and proceedings prior to the grant of the licence, I consider that the circumstances were such that they did give rise to a legitimate expectation on the part of the McGregors that, although their licence was not exclusive, only one licence would be granted. This in turn led to a legitimate expectation that they would be afforded procedural fairness before any other licence was granted allowing another person to conduct business in competition with them. It matters not that Quartermaine told them as a matter of law that the grant of a licence did not preclude the grant of a licence to another. The Authority had chosen to call for applications for a licence on the basis that all the relevant services would be provided by one operator. Furthermore, although Quartermaine deposes that he told them the issue of their licence would not prevent other licences being issued he also said he told them he would follow up the matter and confirm his advice in writing, but could not recall having done so. There was no evidence that he had. CALM and the Authority had at least an obligation to give notice to the McGregors that consideration was being given to extending the safari tour licences for another two years. In my opinion procedural fairness did require that notice and an opportunity to be heard on the proposal but that was all that procedural fairness required in these circumstances. This was not a situation in which material relating to the financial circumstances of the safari tour operators' businesses nor their submissions on environmental considerations needed to be provided to the McGregors: what was pertinent to them and what they needed was an opportunity to put forward material relating to the financial and economic impact on their own business and the environmental impact, both of which they could address without having the safari tour operators' material.
Neither CALM nor the Authority gave notice to the McGregors before the decision was made that consideration was being given to extending the safari tour licences for a further two years.
The first relevant decision here was the Authority's March decision. No prior notice of that was given to them, but the McGregors had become aware the matter was being considered. They had prepared a presentation to be made to the meeting of the Authority members and their intention was to make that presentation personally. A cyclone prevented their attendance. Even so, Mrs McGregor had faxed the presentation to the Authority's acting secretary who had received it and says she placed a copy on the table at the place of each member prior to the meeting. In this regard the affidavit of Grace Silvestro (AB 289) is quite unsatisfactory. She admitted in [8] that the fax coversheet for the applicants' presentation was received at the office of CALM late in the morning of 8 March 2000. She claimed that her recollection was that the submission arrived on her desk only late in the afternoon of 9 March 2000, or early in the morning of 10 March 2000, before the meeting commenced. The fact that her fax number was different from that of the receptionist says very little for the office procedures within the office of CALM. Ms Silvestro did not amend the agenda for the meeting, but says that she placed photocopies of the submission from the McGregors, all 26 pages of it, on the table. That, she claimed, was done before the meeting commenced at 9.15 am. There is no statement that any time was allowed for the members of the Authority to read the submission before voting on the matter. The evidence is silent on the point. There is no reference to the material in the minutes and no evidence on behalf of the Authority that it was taken into account. In my opinion, the absence of any such reference is capable of founding an inference that regard was not had to the McGregors' material. In my opinion, it was not enough that the material:
" ... was before the members before the decision was made."
In my view the unilateral action of CALM and the Authority in extending the safari tours licences for another two years defeated the McGregors' legitimate expectation. That it was done without notice to them and without affording them an opportunity to be heard in respect of it, was a denial of procedural fairness.
It is convenient at this point to deal with ground 2.7. That asserts first that the Authority's March decision to "not oppose" the renewal of the safari tour licences constituted a failure to communicate to the Minister and to CALM that the Authority did not approve the renewals, "as was the fact". This limb of the ground is unsustainable. It was not the fact that the Authority did not approve the renewals; the decision made was, in terms, to "not oppose" them. In the circumstances that must have constituted an approval. It was clearly in the contemplation, and was the expectation, of the Authority that its decision to "not "oppose" would (in conjunction with the approval of the Minister) constitute the necessary statutory authority for renewal of the licences.
The second limb of ground 2.7 is that the decision to "not approve" the renewals was a breach of the Authority's statutory duty to positively either approve or disapprove them. Given my view that the decision amounted to an approval, this limb also must fail.
The CALM decisions of April and July 2000 can be dealt with together. In respect of each of them the complaint made is that CALM had not obtained the approval of the Authority pursuant to s 99(1)(a)(ii) of the CALM Act before the decision was made. In each instance this complaint is met by the Authority's resolution of 10 March, which, as I have found, constituted the requisite approval. This is the only complaint now made in respect of the CALM April McLeod decision and the CALM April Breeden decision. There is a further ground of complaint against the CALM July decision. It is that CALM made a jurisdictional error of law in deciding to renew Breeden's licence for two years when it was known that Breeden was purporting to act on behalf of another entity, Australian Adventure Travel Pty Ltd, which was neither the holder of a current permit capable of being renewed, nor an entity to whom the issue of a permit had been approved by either the Minister or the Authority. This is ground 2.13.4.
On 22 March 2000 the Executive Director wrote to "Mr A Breedon, West Coast Safaris" offering a renewal of his existing commercial activity licence incorporating a boat trip on Yardie Creek. The renewal was for two years expiring on 31 March 2002. The offer required the return of a signed application form. The completed form dated 4 April (AB 277) was signed by Breeden but whereas the name typed on the form as sent was "Mr Alan Breeden, West Coast Safaris" a line had been drawn through the words "West Coast Safaris" and the form had been amended by hand to show Breeden was signing for:
"Mr Alan Breeden & Ian Jowers
Australian Adventure Travel Pty Ltd"
and over the line for the name and address of the applicant was written:
"Australian Adventure Travel
PO Box 2617 Malaga 6944"
On 20 July 2000 CALM sent the following memorandum to Breeden by fax:
"Thank you for returning the documents we requested to finalise your safari tour/boat trip licence for Cape Range National Park.
As you are aware the licence is a renewal of the licence originally issued to 'Alan Breedon - West Coast Safaris'. In your recent application you amended the licence applicant to read 'Alan Breedon and Ian Jowers - Australian Adventure Travel Pty Ltd'.
As the licence is a renewal it must be issued back to the same licence holder, namely yourself. That is, it cannot be renewed under a new name, partnership or company.
CALM is prepared to issue the licence to you however we shall require that you inform us, in writing, that you are aware and accept the licence renewed and issued under the name 'Alan Breedon - West Coast Safaris'."
Breeden was invited to telephone the writer if he had any queries.
Jowers sent the following reply by facsimile dated 24 July 2000:
"In reply to your fax dated 20/7/00
Thank you for making us aware of the name of which you are able to renew our safari tour/boat trip licence: - 'Alan Breeden - West Coast Safaris'.
This does not present a problem as the company is Australian Adventure Travel, trading as West Coast Safaris.
We look forward to receiving the renewal.
Regards,
IAN JOWERS
(Director - Australian Adventure Travel)"
This facsimile was on the letterhead of "Australian Adventure Travel Pty Ltd (ACN 086 174 923) T/A Back Country & West Coast Safaris."
The licence (AB 282) actually issued was to "Alan Breeden trading as West Coast Safaris". It had been signed by the Executive Director on 6 April 2000 and was endorsed as approved by the Authority and the Minister on 10 and 20 March 2000 respectively.
On the face of it I think there is substance to the applicants' point here. It was not Breeden who responded to the CALM memorandum; it was Jowers, writing as a director and on behalf of Australian Adventure Travel Pty Ltd. It is apparent from his response that it was the company that was trading as "West Coast Safaris" and would be conducting the commercial activities authorised by the licence. This was not an instance of a purported transfer of the licence which could arguably have been done under s 101(2) or (3) of the CALM Act. Nonetheless, it is important to bear in mind that the subject of this application for certiorari is the decision by CALM to issue the licence and that the basis for it is said to be that there was a jurisdictional error of law. The decision made was to issue the licence (extension) to Breeden trading as West Coast Safaris. That was what was approved by the Authority and the Minister. The licence issued in that form. In these circumstances it seems to me that whatever remedy (if any) may lie here it is not a writ of certiorari to quash the decision to issue the extension of the licence to Breeden trading as West Coast Safaris.
Ground 2.14 complains that in making each of the impugned decisions the authority and CALM respectively made jurisdictional errors of law in that:
"2.14.1the decisions by the NPNCA were not in accordance with its obligations under section 22(1)(b)(iii) of the CALM Act as the decisions were inconsistent with sections 56(1)(c) of the CALM Act; and
2.14.2the decisions by CALM were not in accordance with the management plan for the Park and accordingly were in breach of section 33(3) of the CALM Act."
Section 22 of the CALM Act set out the functions of the Authority. That mandated by subs (1)(b) was:
"(b)to develop policies -
(i)for the preservation of the natural environment of the State and the provision of facilities for enjoyment of that environment by the community;
(ii)for promoting the appreciation of flora and fauna and the natural environment; and
(iii)to achieve or promote the objectives referred to in section 56(1)(c), (d) and (e);"
Section 33 sets out the functions of CALM. That relevantly provided:
"(1)The functions of the Department are, subject to the direction and control of the Minister -
(a)to manage land -
(i)to which this Act applies; or
(ii)which becomes subject to the management of the Department under subsection (2),
and the associated forest produce, fauna and flora;
(b)to provide the Commission, the Authority, the Council, the Marine Authority and the Marine Committee with such assistance as they may reasonably require to perform their functions;
…
(2)…
(3)The management of land referred to in subsection (1)(a)(i) and the associated forest produce, flora and fauna shall be carried out -
(a)where there is a management plan for the land, in accordance with that plan; or
(b)where there is for the time being no such plan -
(i)in the case of nature reserves and marine nature reserves, in such a manner that only necessary operations, within the meaning in section 33A(1) are undertaken;
(ii)in the case of national parks, conservation parks, marine parks and marine management areas, in such a manner that only compatible operations, within the meaning in section 33A(2), are undertaken; or
(iii)in any other case, in accordance with the provision of section 56 applicable to the land."
Section 56 deals with the objectives of management plans. It relevantly provides:
"(1)A controlling body shall, in the preparation of proposed management plans for any land, have the objective of achieving or promoting the purpose for which the land is vested in it, or for which the care, control and management of the land are placed with it, and in particular management plans shall be designed -
…
(c)in the case of national parks and conservation parks, to fulfil so much of the demand for recreation by members of the public as is consistent with the proper maintenance and restoration of the natural environment, the protection of indigenous flora and fauna and the preservation of any feature of archaeological, historic or scientific interest;
(d)in the case of nature reserves to maintain and restore the natural environment, and to protect, care for, and promote the study of, indigenous flora and fauna, and to preserve any feature of archaeological, historic or scientific interest;
…
(e)in the case of other land referred to in section 5(g) or (h), to achieve the purpose for which the land was vested in, or for which the care, control and management of the land were placed with, the controlling body."
On behalf of the applicants it is said that in light of the decision in Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management (1997) 18 WAR 126, it is clear that s 33 of the CALM Act imposes binding duties on the Executive Director. It is said further that by analogy s 22(1)(b)(iii) and s 56(1)(c) of the CALM Act imposes duties on the Authority and those duties included consideration of those matters by the Authority (and the matters in s 33 by CALM) in determining whether to grant licences to the McLeods and Breeden. The submission is that the Authority and CALM failed to do so because the decisions to extend the safari tour licences will make the McGregors' tours unviable, have an adverse impact on the environment and reduce the quality of the tours. This is said to reflect jurisdictional error in that the Authority and CALM identified the wrong issue or asked the wrong questions.
As to s 33(3) of the CALM Act, it is submitted for the applicants that CALM has committed a jurisdictional error of law in not considering the requirements set out therein. It is said that the considerations contained in the Cape Range National Park Management Plan are consistent with s 56(1)(i) of the CALM Act but are more detailed and CALM was obliged to have regard to them.
According to Quartermaine the Authority adopted a management plan for the Cape Range National Park on 11 September 1987, which management plan has remained in place since that date. The management plan ("RKQ 15"; AB 359‑405) sets out, inter alia, management objectives, management prescriptions and a management strategy. It also contains an examination of the implications for natural resources arising from management proposals and another section on the socio‑economic implications arising from management proposals. The general thrust of the document is to recognise that development of the park would make a significant contribution to the economic development of the region, but if that contribution is to be sustained in the longer term, it is essential that the integrity of the environment and ecology be maintained through competent management and the cooperation of the park users. The plan specifically notes that it sets out the management intent for the Cape Range National Park and will be used to guide and direct management and development, but that implementation would be subject to the availability of funds and resources.
I accept the submission made on behalf of the applicants that put broadly both the Authority and CALM were obliged, by virtue of the statutory provisions to which reference has been made and the management plan, to promote the objective of fulfilling so much of the demand for recreation by members of the public as is consistent with the proper maintenance and restoration of the natural environment and the protection of indigenous flora and fauna.
The applicants' assertion however, is that the Authority and CALM plainly failed to have regard to these considerations because allowing other tour operators (ie the safari tour operators) will make the tours unviable, have adverse effects upon the environment and reduce the quality of the tours. It is said that the Authority initially applied the precautionary principle in granting the applicants' licence, with onerous conditions, and in not approving the issue of a licence to the McLeods or Breeden; but in "not opposing" the extension of their licences it failed to have regard to that principle.

In Bridgetown/Greenbushes, supra, Scott and Templeman JJ were in the majority. The plaintiffs had filed a statement of claim which pleaded in part that the legal duties created by s 33(3)(a), (1)(a)(i) and (1)(d) obliged the Executive Director to implement management plans for State forest strictly in accordance with the terms of those plans, details of which were set out in the pleading. Templeman J, with whom Scott J agreed on this, held that the plans were discursive only and contained numerous management objectives which might conflict according to financial and political constraints; although the Executive Director had to act honestly and in good faith and comply with ministerial directions, he otherwise had a wide discretion as to the manner in which the statutory duties are discharged. Furthermore, whilst the elements of the various objectives set out in the Forest Management Plans were relevant considerations of which CALM was legally bound to consider, the way in which they were to be taken into account and the weight to be given to them were matters for CALM's discretion.
Scott J said (153‑154):
"The statement as to implementation of the plan is indicative of the nature of the document. It is neither intended nor designed to be a hard and fast document with legal responsibilities and consequences attaching to each of its provisions. Rather, the document is a guideline document indicating the policies and direction that the department wishes to pursue throughout the life of the plan. To suggest, as the plaintiffs do in the statement of claim, that the document is legally binding in the sense that a breach of any part of it will attract sanctions, is a proposition that, in my opinion, is simply not sustainable. Looked at in that light, in my view, s 33(3) of the Conservation and Land Management Act 1984 (WA) is a section which does no more than bind the department to the fundamental objectives of the plan and an obligation to ensure that the plan is implemented in accordance with the policy and strategy in the document. Exactly how that is to be achieved and the way in which priorities are to be allocated, both in relation to the funding of and the achievement of those policies and objectives, is essentially a matter for the discretion of the department. It follows that it would not avail the plaintiffs to allege or suggest that there is some violation of the policies or strategies unless it could be said that the way in which the department was carrying out the plan was in violation of those fundamental principles. In that respect, the case is not unlike Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189. In the latter case, in the joint judgment of French and Drummond JJ their Honours said (at 208):
'It must be accepted, as counsel for the Minister submitted, that Ministerial policy is not to be construed and applied with the nicety of a statute. Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision‑making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision‑maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error.'
It follows, in my opinion, that whilst the defendants do have an obligation to apply the broad policy considerations of the forest management plan, they have no obligation nor are they bound to follow every aspect and detail of the management plan in the manner suggested by the plaintiffs in the statement of claim. In that respect, I agree entirely with the judgment of Templeman J when he says: 'The way in which the defendants take those matters into account, and the weight which are to be given to them are matters for the defendants' discretion.'
In my opinion, his Honour there correctly sets out the defendants' obligations with respect to following the terms of the forest management plan."
Templeman J found that having regard to the statutory provisions, the management plan did impose binding legal obligations on the Executive Director and CALM. His Honour said (167‑168):
"… the production, publication and approval of a Management Plan is a serious business. It is intended that such a plan shall, as far as possible, achieve the objectives of which it was designed: and that all those who wish to be heard during its gestation period shall be given an opportunity to participate in that process. Indeed, as the Full Court held in South‑West Forests Defence Foundation (Inc) v Lands and Forests Commission the duty of a controlling body in bringing into existence management plans under the CALM Act is 'an essential duty …': per Anderson J (at 376) with whom the other members of the court agreed.
In my judgment, by providing in s 60 that a plan 'shall come into operation on an ascertainable date', and by providing in s 33(3) that where there is a Management Plan the management of the relevant land 'shall be carried out' in accordance with it. Parliament intended to impose a legal duty on CALM to give effect to that plan.
That construction flows, I think, from the policy of the CALM Act. But if any doubt existed, it would be resolved by s 56(2) of the Interpretation Act 1984 (WA). It is there provided that where in a written law the word 'shall' is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed.
Having regard to the statutory scheme summarised above, I do not think that s 33(3)(a) could properly be construed to mean that if CALM decided to manage land it must do so in accordance with the management plan."
His Honour concluded that the effect of s 33(3)(a) of the CALM Act is to impose a legally binding duty on the Executive Director and CALM to manage State forests in accordance with the Forest Management Plans applicable to them. That, however, was not sufficient to determine the matter being dealt with in that case; what lay at the heart of the matter was the nature and extent of the obligations so arising. Thus, whilst there was such a legally binding obligation, it was a matter for the defendants to implement the management plans as they thought fit, and subject to any direction given by the Minister. Apart from a duty to act honestly and in good faith, the discretion of the defendants in that regard was largely unfettered (175).
The applicants argue that to the extent the scientific environmental evidence was unclear and there was on the other hand evidence of potentially adverse environmental impact from extension of the safari tour licences given the existence of the applicants' licence, the Authority and CALM were obliged to apply the precautionary principle. They rely upon the decision of Wheeler J in Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director of Conservation and Land Management (1997) 18 WAR 102, particularly at 119. They say the principle is enunciated clearly in Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 at 281‑283 which has recently been applied in Yamauchi v Jondaryan Shire Council (1998) QPLR 452 at 459‑460 and Yulara Pty Ltd v Rockhampton City Council (1999) QPELR 296 at 306. They contend that the principle requires that when scientific evidence is unclear as to the environmental impact of a decision, the decision‑maker should seek to avoid the potential of irreparable harm.
I do not know that the decision of Wheeler J in Bridgetown/Greenbushes Friends of the Forest affords as much support to the applicants as is contended. In that case CALM was obliged to conform, in its logging of jarrah forests, with a "precautionary approach" as required by a statement issued by the Minister for the Environment setting out conditions. The conditions themselves explained that the precautionary approach required that where there is a significant risk that a particular forest management measure could lead to an irreversible consequence, appropriate monitoring and subsequent adjustments to management within an acceptable time‑frame be carried out. Her Honour observed (at 117) that it was clear from the affidavits and submissions of law in that case that opinions differed as to the meaning of "precautionary approach". It was also clear that whether or not there had been compliance with it on any particular occasion involved matters upon which opinions varied widely within a specialised field of expertise. Those practical considerations in her Honour's view supported, albeit slightly, the conclusion that there was no intention to create a justiciable standard. In any event, in the circumstances her Honour found it not necessary to resolve that question.
Her Honour went on to say (118‑119):
"Adopting for the moment a very broad characterisation of the precautionary approach, a requirement that a decision maker 'be cautious' says something about the way in which the decision must be made. There must be some research, or reference to available research, some consideration of risks, and a more pessimistic rather than optimistic view of the risks should be taken. However, such a requirement does not in any particular case specify precisely how much research must be carried out, or when a risk should be considered to be so negligible that it may safely be disregarded. Still less, does such an approach dictate what courses of action must be taken after the possibilities have been cautiously weighed.
No doubt there are extremes at either end of a spectrum, where one would be able to say that a decision maker had or had not been 'cautious'. Where endangered species are concerned for example, one can see that where readily accessible and unambiguous research material pointed to a serious risk that numbers of the species would be dramatically reduced by a course of action, then the adopting of that course of action, in the absence of any evidence of consideration of alternatives, would seem to point inevitably to a finding that there had been no relevant 'caution'. At the other extreme, in absence of any action, other than research and study, is clearly cautious but is not the only option available in most cases. Although there has been very little judicial consideration of the precautionary approach or 'precautionary principle' (a similar or perhaps identical concept which appears in a number of intergovernmental agreements) the clear thread which emerges from what consideration has been given to the approach is that it does dictate caution, but it does not dictate inaction, and it will not generally dictate one specific course of action to the exclusion of others: see Leatch v National Parks and Wildlife Service (1993) 81 LGRA 270 at 281-283; Nicholls v Director General, National Parks and Wildlife (1994) 83 LGRA 397 at 418‑419; Greenpeace New Zealand Inc v Minister of Fisheries (unreported, High Court of NZ, 27 November 1995) at 31‑32."
The point here, I think, is that the Authority and CALM acceded to the Minister's request for extension of the safari tour licences on the basis that the scientific evidence was unclear and further scientific research needed to be undertaken. They were concerned about the potential for adverse environmental impact and the prospect that the tourism experience for visitors may suffer, but it was for them to decide whether these potential consequences were so serious (the authorities speak of the potential damage being "irreversible" or irreparable) as to dictate that the precautionary principle should determine the outcome.
Given the authority of the decision of the Full Court in Greenbushes, supra, it cannot be said the Authority and CALM were under a legal obligation to take the view that in the particular context of the Minister's requests and her express desire for further scientific study, examination and report, and having regard to the fact that despite concerns about the environmental impact, approval had previously been given for three commercial operators and up to eight boat trips per day, it was not open to them to approve the extension of the safari tour licences for a further two years. It is clear the Authority and CALM had applied the precautionary principle at a number of points in the course of their consideration of all of these licensing applications. Reference was expressly made to it on several occasions. I do not think it can properly be said that "in not opposing the extension of the impugned licences" the Authority failed to have regard to it. Certainly the Authority did not then give precedence to that consideration at that point, but that is a different matter and as the Full Court decision in Greenbushes makes clear, the weight to be given to that or any other factor was in the discretion of the Authority. The same applies to the requirements of s 33(3) and s 56(1)(i) of the CALM Act and the Cape Range National Park Management Plan, insofar as the decisions of CALM were concerned.
I come finally to the further submission made by counsel for the McLeods as to the discretionary nature of the remedies sought by the applicants. Senior counsel draws attention to the fact that the applicants have instituted a separate claim for damages against CALM based on the issue of the subject licences in Supreme Court action CIV 2370 of 2000. The writ of summons is annexure "DEG‑1" to the affidavit of Dean Edward Grondal, sworn and filed on 20 July 2001. The indorsement of claim recites that the plaintiffs' (applicants') claim against the Executive Director and the Authority arises out of acts, omissions and nonfeasance during the period 9 October 1994 to 10 October 2000 in connection with their respective roles under the CALM Act and regulations with respect to the management of Cape Range National Park. The claim is for damages for negligence and further, or alternatively, damages for breach of statutory duty. Grondal deposes that he has been informed by a solicitor in the Crown Solicitor's Office that the McGregors have not yet filed and served a statement of claim and that a status conference was convened on 29 June 2001 but the only order made was that it be adjourned sine die.
It is therefore contended on behalf of the McLeods, that the granting of the application would not bring an end to litigation between the applicants and CALM. They rely upon Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 at 296 and 307; s 24(7) and s 25(6) of the Supreme Court Act 1935 (WA) and Coles v Wood (1981) 1 NSWLR 723 at 728.
I accept the principle that the fact that granting discretionary relief will not bring an end to litigation between the parties can be a strong factor militating against the exercise of the discretion in that way. In the present case however, Mr Giles in his submissions, indicates that the action does not concern the issue of the licences. Mr McCusker QC on the other hand says it is sufficient that the subject‑matter of that action and these proceedings is the same. Given this conflict, and in the absence of any clear information about the subject‑matter, claims and issues which would arise in the action, I would not be prepared to decline the relief sought solely or substantially upon this ground.
I would however, be inclined to give more weight as a factor going against the application on discretionary grounds to the delay between the making of the relevant decisions and the filing of the application. The safari tour licences were issued in April 2000. There is evidence that the McLeods have incurred further cost and expense and made commitments based upon the existence of the licence and their expectation that it would continue for the two year period. The notice of originating motion for certiorari and a declaration was filed on 8 November 2000. I accept that the applicants had difficulty obtaining relevant documentation from CALM and the Authority, some of which had to be obtained under freedom of information legislation, but in the circumstances the explanation is not entirely satisfactory.
The delay, even taking into account the difficulties deposed to by the applicants, was significant.
The jurat in Mrs McGregor's affidavit contains the date 9 August 2000 as the date of swearing of the affidavit (AB 36), yet the coversheet shows the date of the document as being 2 November 2000, and the date of filing as being 8 November 2000 (AB 18). The first date may, however, be incorrect, having regard to the fact that a number of the exhibits appear to have been faxed to the applicants' solicitors early in October and on 2 November 2000 (for example AB 279 – 282, 160). The excuse for the delay was the inability of the applicants to obtain from CALM under the Freedom of Information Act all relevant documentation. Why the applicants could not have proceeded with the information immediately available to them is not apparent.
The McLeods' licence is due to expire on 31 March 2002 (AB 275). In Mr McLeod's second affidavit, at [8] it is indicated that the peak season for his company's tours is July, August and September. That period has now passed and the licence will have expired before the next peak season. In the meantime, not unnaturally, as is pointed out at [13] of this affidavit, McLeod's company has been taking bookings and accepting deposits, because it would not have been commercially viable for his company to have ceased taking future bookings.
Although for the reasons expressed above I consider there was a denial of procedural fairness to the applicants in the process of granting the extension of the licences to the McLeods and Breedon, the combination of the fact that there is an extant claim for damages by the applicants against CALM based on the extension of those licences and the very significant delay in the applications for certiorari and of declarations, I have come to the conclusion that a proper exercise of the discretion whether or not to grant that relief compels its refusal.
I would accordingly refuse the application.