ResourceCo Material Solutions Pty Ltd & Anor v State of Victoria & Anor

ResourceCo Material Solutions Pty Ltd and Southern Waste ResourceCo Pty Ltd (the plaintiffs) commenced proceedings in the High Court of Australia against the State of Victoria and the Environment Protection Authority Victoria (the defendants). The dispute concerned the legal characterisation of certain legislative provisions and their potential impact on interstate trade and commerce, likely in the context of waste management. The proceedings appear to have been initiated by way of a special case, but the parties were experiencing difficulties agreeing on the statement of facts.

The central legal issue before the Court was whether the plaintiffs could succeed in their challenge to the defendants' legislative measures without engaging in a factual dispute. Specifically, the Court considered whether the plaintiffs could demur to the defence, thereby accepting the pleaded facts as true for the purpose of argument, and still advance their legal point. This approach would avoid the need for the Court to resolve contested factual matters, which had proven to be a significant impediment to the progress of the special case.

The Court, through the remarks of the presiding Justice, indicated that a demurrer would be a more appropriate procedural mechanism if the plaintiffs maintained that the facts pleaded by the defendants, even if accepted, did not constitute a defence. This would allow the Court to focus on the legal question of characterisation without being encumbered by factual disputes. The defendants, represented by the Solicitor-General, indicated that they would contend that the relevant market for waste treatment was broader than that asserted by the plaintiffs, and that the impugned measures constituted protection within that larger market, which they would seek to justify. The Court noted that the plaintiffs' reply appeared to agitate factual disputes, which was inconsistent with a demurrer.

The Court proposed that the plaintiffs consider demurring to the defence. If the plaintiffs chose this path, the Court would then determine whether the matter was appropriate to be referred to the Full Court. The plaintiffs indicated a preference for this approach and sought to confer with their counsel to facilitate the process.