ResourceCo Material Solutions Pty Ltd & Anor v State of Victoria

ResourceCo Material Solutions Pty Ltd and Southern Waste ResourceCo Pty Ltd (the plaintiffs) brought proceedings in the High Court of Australia against the State of Victoria (the defendant). The dispute concerned the validity of regulation 26(3) of certain Victorian regulations, which the plaintiffs contended offended section 92 of the Australian Constitution. The plaintiffs sought to transport waste to a facility in South Australia, but their application for approval was refused.

The primary legal issue before the Court was whether regulation 26(3) imposed a burden on interstate trade that discriminated against it and had a protectionist effect, thereby contravening section 92 of the Constitution. A secondary issue, raised by the defendant, concerned whether there was a permissible governmental purpose for the regulation and whether it was appropriate and adapted to achieving that purpose. The plaintiffs argued that the regulation, by its terms, prevented interstate facilities from being licensed to receive waste, thus inherently discriminating against interstate trade.

The Court, through the transcript of proceedings, indicated that it required a clear articulation of the State's position on the issues. The plaintiffs contended that the regulation's territorial reach meant that only Victorian facilities could be licensed, and that the requirement for a permit to transport waste to an interstate facility, based on comparative environmental performance, inherently discriminated against interstate trade. The defendant, while not conceding the plaintiffs' arguments, suggested that the case involved the application of settled principles of section 92 law to complex factual and regulatory circumstances, particularly concerning the definition of the relevant market and the State's regulatory objectives of waste reduction and improved treatment methods.

The Court directed that the defendant file a defence, clearly setting out its response to both the primary question of discriminatory burden and the secondary question of permissible purpose and proportionality. The parties were given specific timelines for the filing of further pleadings, indicating that the Court intended to proceed with the case after receiving the defence.