Tasmanian Conservation Trust Incorporated v Minister for Resources

[1994] FCA 720

720

JUDGMENT No. ..... . . ....... . ......-.

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OP AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )	No. NG536 of 1994
GENERAL DIVISION	1

BETWEEN: TASMANIAN CONSERVATION

TRUST INCORPORATED

Applicant

AND: MINISTER FOR RESOURCES

COR?in:	SACKVILLE J.
PLACE :	SYDNEY
DATE :	21 SEPTEMBER 1994  RECEIVED

11 OCT 1994

REASONS FOR JUDGMENT FEDERAL COURT OF

PRINCIPAL REOISTRV

HIS HONOUR:  In this matter the applicant is the ~asma~ian

Conservation Trust Incorporated. It has filed an amended application and an amended points of claim. The first respondent is the Minister for Resources and the second respondent is Gunns Limited. Mr Basten QC appears on behalf of the applicant with Mr Williams and Mr Johnson appears on behalf of the flrst respondent. Mr Hale appears on behalf of the second respondent.

The issue that arises today is whether a question of standing, that is in issue between the parties, should be addressed together with the substantive issues in the proceedings or whether it should be dealt with separately. M r Basten has	together with the substantive issues in the proceedings. Mr	submitted that the question of standing should be addressed
Johnson, supported by Mr Hale in this respect contends that the question of standing should be dealt with as a preliminary issue.
It is perhaps not necessary to say a great deal about the nature of the proceedings. The applicant according to the amended points of claim is incorporated pursuant to the Associations Incorporation Act 1964, (Tas). In a decision apparently reached on or about 10 June 1994 the first respondent, the Minister, granted an export licence to the second respondent to export woodchips for the remainder of 1994. At about the same time the first respondent granted an "in principle" approval to the second respondent to export 200,000 tonnes of woodchips per year up to the end of 1999, subject to the issue of annual export licences.
The applicant attacks each of these decisions on a number of grounds dealt with in the amended points of claim. It is alleged, among other things, that the first respondent failed
to take into account matters that he was required to consider
under the terms of the Environment Protection (Impact of
Proposals) Act 1974. It is also alleged in the amended points of claim that, independently of contraventions of that Act the decisions of the Minister were unreasonable. It is also said, as I understand the position, that there were certain breaches of the Australian Heritage Commission Act in the course of making the decisions.
One affidavit has been filed in these proceedings. That is an affidavit of Maria Penelope Comino, sworn 23 August 1994. That affidavit provides some documentary material relating to the decisions which are attacked by the applicant.
There has been placed before me, for the purposes only of today's proceedings, a draft affidavit by Michael Anthony Lynch. That affidavit sets out some, although I am informed not all or not necessarily all, of the evidentiary material upon which the applicant would rely in order to establish its standing to challenge the decisions to which I have already referred.
Mr Basten on behalf of the applicant has pointed to
authorities that indicate that where an issue of standing is raised, at least where that issue is integrally involved or may be integrally involved with the substantive questions in the proceedings, the standing issue ought to be resolved together with those substantive issues. In particular, Mr
Commissioners v National Federation of Self-~m~loved and Small Basten has referred me to observations in Inland Revenue
Businesses Limited 1982 AC 617 at 630 and 636. He has also referred me to passages in Robinson v Western Australia (1977) 138 CLR 283 at 302-3 and gnus v Alcoa Australia Limited, (1981) 149 CLR 27 at 38.
Mr Basten contends that those passages support the proposition
that, where the issue of standing may be related to the substantive questions, the convenient course will ordinarily
be to hear the issues together. In thls case he submits that in order to understand and deal with the issues of standing it will be necessary to address some of the substantive questions that arise. These include the structure of the legislation and some of the evidentiary material relating to the attack that the applicant makes upon the Minister's decisions.
Mr Johnson for his part contends that there may be no real
economy in hearing the matters together. He points out that the question of standing could be dealt with in a day and there may be uncertainty as to how long the balance of the case might take. Plainly from the Commonwealth's point of view, although it wishes the matters to be dealt with rapidly, it would not welcome the prospect of time belng spent on the substantive issues unnecessarily. This would be the case if it were held that the applicant did not have standing to raise the matters pleaded in the amended points of claim.
Kr Johnson refers to some matters in the amended points of
claim such as the allegation that the decisions were unreasonable or that there was a threat from the decisions to
certain species. He polnts out that the evidence on these matters is not yet concluded and there may be some issues that travel well beyond the draft affidavit that was supplied to me. In his submission it would be a more convenient course to detenine the questions of standlng initially. If those matters were resolved favourably to the Minister that would be an end to the litigation. It would also avoid the danger of the hearing itself possibly being prolonged by some of these additional questions.
Mr Hale on behalf of the second respondent endorsed the
submissions of Mr Johnson and made an additional point. He contended that the court should be loath to expose the second respondent to an investigation of its business affairs if the true position were that the applicant did not have standing. He pointed to the risk of an invasion, as it were, of the second respondent's business affairs by the attack made by the applicant. Yet this might take place without the applicant having the necessary standing to raise the issues in the first place. Mr Hale referred to these matters as additional considerations justifying a preliminary hearing on the standing question.
Mr Basten has contended in reply that the second respondent's
business activities are unlikely to be in issue. The basis of the claim by the applicant, according to Mr Basten, is that
the first respondent has failed to comply with certain statutory preconditions and in particular has failed to take
into account the advice of Commonwealth agencies that bear upon those statutory preconditions.
One of the difficulties in dealing with this matter is that one cannot be sure at this stage precisely what the issues may be. However, on the basis of what I have heard, it seems to me that the likelihood is that the substantive hearing will not take more than a total of three days, including the
standing issue. I appreciate, as Mr Johnson has pointed out, that it is possible that the hearing may be prolonged if further factual issues are identified. I also appreciate that not all of the evidence is yet on. However, judging from such material as is available it seems to me that there is at least a good prospect of the matter being resolved within that three day time span.
A very important consideration in my view in this case is the need for an expedited resolution of the case. There does not seem to be any dispute that since the challenge is made to decisions that grant an export licence for the balance of the calendar year the proceedings ought to be resolved as swiftly as is possible. A concern that I would have if the question of standing were dealt with separately is that there may be further delays before the balance of the proceedings could be dealt with.
Although the points that have been made by Mr Johnson and
think this case ought to be dealt with in a manner that allows supported by Mr Hale are not without substance, on balance I
both the standing issue and the substantive questions to be resolved together. I think Mr Basten is correct when he says the likelihood is that the standing issue will require some reference, perhaps not exhaustive, to the issues that are raised in the amended points of claim on the substantive questions. It would be wasteful of court time if there were duplication required by reason of the standing issue being dealt with separately. Of course, I appreciate that if the
matter were resolved in favour of the first and second respondents it could be dealt with more swiftly by a separate hearing on the standing question. On balance however, and in particular taking into account the need for expedition, I think the matters should be dealt with together. That also appears to accord with the thrust of the authorities that have been cited by Mr Basten.
Accordingly, I would propose that the question of standing be dealt with together with the other issues in this case, and then it becomes a matter of finding hearing dates that are as convenient as possible to the parties and ensuring that an appropriate timetable is laid down.
RECORDED NOT TRANSCRIBED
HIS HONOUR:  A further issue has been raised as to when the
hearing might take place in this matter. On the basis that
the matter is urgent and requires an expedited hearing, the practical choices appear to be between three days in the week commencing 17 October 1994 although those three days would have to commence as from 18 October or three days in the week commencing 14 November although again those three days would need to commence on Tuesday 15 November.
Were it not for M r Hale's attitude I would be inclined to take the view suggested by Mr Johnson and have this matter dealt with in October. It is, after all, the applicant that is seeking in effect to set aside decisions that are currently being relied upon to support woodchipping operations. It behoves the applicant: to take the necessary steps to get the matter on quickly.
M r Hale, however, on behalf of the second respondent has
expressed doubts as to whether his client will be in a position adequately to deal with the substantive matters if a hearing date were set on or about 18 October 1994. Having regard to the recent rejoinder of the second respondent in the proceedings, the concern expressed by Mr Hale seems to me to be reasonable.
I appreciate that whatever position is taken inconvenience will be caused to one side or another in these proceedings. It seems to me that the most sensible course, having regard to all of the matters that have been ventilated, is to set this matter down for hearing for three days commencing on Tuesday
all of the matters will be dealt with. It will therefore be 15 November 1994. At that time, as I have previously ruled,
necessary to have a timetable so that that hearing date can be met.
RECORDED  NOT TRANSCRIBED
HIS HONOUR: In light of M r Hale's indication that the three days commencing on Wednesday 16 November 1994 would be more convenient to him, I am prepared to make the hearing dates three days commencing on Wednesday 16 November 1994.

I certify that this and the preceding 8 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. .

Associate: / - J . 4'

L/

Dated:  6 October, 1994

Heard:	21 September 1994
Place:	Sydney
Decision:	21 September 1994
Appearances:	Mr J Basten QC and Mr N J Williams
instructed by the Environmental Defender's Office appeared for applicant
Mr G Johnson instructed by the Australian
Government Solicitor appeared for respondent
Mr T S Hale instructed by Dunhill Madden Butler appeared for second respondent