The Australian Steel Company (Operations) Pty Ltd and Minister for the Environment and Water

[2023] AATA 1021

The Australian Steel Company (Operations) Pty Ltd and Minister for the Environment and Water [2023] AATA 1021 (2 May 2023)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/0619
General Division	)

Re: The Australian Steel Company (Operations) Pty Ltd

Applicant

And: Minister for the Environment and Water

Respondent

And: Nyrstar Port Pirie Pty Ltd

Other Party

DIRECTION

TRIBUNAL:  Dr Damien Cremean, Senior Member

DATE OF CORRIGENDUM: 4 May 2023

PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text on the front page of the decision record in this application as follows:

1. The words “Australian Postal Corporation” are to be replaced with the words “Minister for the Environment and Water”.

...............................[sgd]....................................
Senior Member

Division:                  GENERAL DIVISION

File Number(s):      2021/0619

Re:The Australian Steel Company (Operations) Pty Ltd

APPLICANT

AndAustralian Postal Corporation

RESPONDENT

AndNyrstar Port Pirie Pty Ltd

OTHER PARTY

DECISION

Tribunal:Dr Damien Cremean, Senior Member 

Date:2 May 2023

Place:Melbourne

The application is refused.

.................. .............[sgd].........................................

Dr Damien Cremean, Senior Member 

Catchwords

PRACTICE AND PROCEDURE – whether a video/inspection should be taken before hearing – industrial facility – located interstate – no evidence heard – view will not assist Tribunal to understand questions raised and to follow evidence – occupational health and safety issues – Applicant’s offer to pay out-of-pocket costs of each party and Tribunal declined – application refused

Legislation

Commonwealth Places (Application of Laws) Act 1970 (Cth)

Cases

Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 2) [2015] FCA 429

Scott v The President, Councillors and Ratepayers of the Shire of Numurkah (1954) 91 CLR 300

Tascone and Australian Community Pharmacy Authority [2011] AATA 724

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

2 May 2023

THE APPLICATION TO CONDUCT A VIEW

1. A directions hearing by telephone was held in this matter on 17 April 2023.

2. The Applicant, The Australian Steel Company (Operations) Pty Ltd (‘TASCO’), has made an application for the Tribunal to conduct an inspection (historically described as a “view”) of the facility of the Other Party, Nyrstar Port Pirie Pty Ltd (‘Nyrstar’), in Port Pirie, South Australia.

3. TASCO suggested that the view is to be attended by the parties and conducted in accordance with an itinerary prepared by TASCO. The view — including getting there and back with an overnight stay — would take up two days’ time.

4. Counsel for TASCO submitted that a view would assist the Tribunal ‘to follow in a more efficient way the course of evidence in the hearing.’ The view is opposed by the Respondent, the Minister for the Environment and Water (‘the Minister’), as having ‘very little utility’ and is opposed also by Nyrstar on the basis of a lack of necessity, particularly having regard to the cost, and occupational health and safety issues.

5. I have mentioned a view at various points in the conduct of the matter so far — often more casually than not — and I have never ruled that one should not take place. I have suggested a video be provided which of course these days might be achieved by drone with little interruption to Nyrstar’s business.

   PRINCIPLES

6. There are decided advantages in having a view – I have no doubt about that.

7. However, I rely upon the very authority that TASCO referred to in correspondence – Deputy President Forgie’s decision in Tascone and Australian Community Pharmacy Authority.[1] That decision outlined the principles applying regarding the use that may be made of a view, quoting the majority of the High Court in Scott v The President, Councillors and Ratepayers of the Shire of Numurkah (‘Scott v Shire of Numurkah’): 'the rule is that a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in evidence’.[2]

   [1] [2011] AATA 724.

   [2] Tascone and Australian Community Pharmacy Authority [2011] AATA 724, 413 [127] quoting Scott v The President, Councillors and Ratepayers of the Shire of Numurkah (1954) 91 CLR 300, 313 (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ) (‘Scott v Shire of Numurkah’).

8. I am not clear that the Court in saying that quite had in mind a case of this nature – but I shall assume that that is not a relevant consideration.

9. The Applicant also cited Mineralogy Pty Ltd v Sino IronPty Ltd (No 2) (‘Mineralogy’) in which I was taken to passages of Edelman J’s judgment.[3] Edelman J, having referred to Scott v Shire of Numurkah, allowed an inspection (or view) to take place.

   [3] [2015] FCA 429 (‘Mineralogy’).

   CONSIDERATION

10. I have considered his Honour’s reasons in Mineralogy but I am not satisfied I should rule in favour of the application in this case.

11. I do not see how (and I said this at the time) a view will, at the moment, help me to understand the questions being raised or to follow the evidence and apply it. At this point I have heard no evidence in any formal way and no witness has been asked any questions or cross-examined. To order or direct a view now, I consider, would involve me assuming that the questions raised and the evidence given will only be understood by me or followed and applied (respectively) after a view has occurred. I have no basis for reaching that conclusion. To reach a conclusion or a likely position at this point that I will need a view to understand the questions or to follow and apply the evidence is to prejudge various matters, including the nature of the questions and the evidence, and I shall not be doing that.

12. I am concerned also about a matter raised by Nyrstar. As I understand it, the premises in Port Pirie are industrial with a working plant and equipment. There would be a clear need for occupational health and safety to be observed – but I remain unclear to what extent requirements of that nature would be based in Commonwealth law or State law or both and, if both, how they would fit together. Possibly even – but without finding it to be so – the site conceivably could, for a short time and temporarily, become subject to the operation of the Commonwealth Places (Application of Laws) Act 1970 (Cth) depending, amongst other things, on the control the Tribunal exercises or would be exercising on site.

13. In any event, I am unclear in a detailed way what the requirements under either system would be and how they might be accommodated and at what cost. I make no observations about what might happen if someone — anyone — might be injured on site and who would bear responsibility for that should it occur. In that regard I am not clear about what the status of persons attending the view on site would be or what their status would be in travelling to or from site or when staying overnight somewhere or in vehicles or aircraft. I am not told of any insurance cover which may apply to anyone on the view or on the journey or journeys to or from there and whether being away from one’s home State or Territory, in the case of those attending site, would make a difference to an insurer. Indeed, I am not informed whether anyone attending site would need to notify an insurer beforehand or whether special cover would need to be sought and obtained. I make no observations about whether there might be unusual dangers or risks on site given what I understand may be the business conducted there or whether anyone attending the view could be exposed on site to special or unusual risks to health or well-being while there. Nor am I informed about the need for any special safety equipment that might arise on site or of the provision (if any) made for ordinary safety or other equipment to be available on site as necessary for those attending the view.

14. In all the circumstances I rule against a view at this stage and in doing so rely upon Scott v Shire of Numurkah. Even an application for a view at a later stage — if sought again — would need to deal somehow with the matters I mention in paragraphs 12 and 13.

15. I decline TASCO’s unusual offer, made via its Counsel, to pay the costs of the Tribunal attending the view (and the other parties) up to $3,500.00 each.

    DECISION

16. For the reasons above, I refuse TASCO’s application for the Tribunal to conduct a view of Nyrstar’s facility in Port Pirie, South Australia.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

...............................[sgd].........................................

Associate

Dated: 2 May 2023

Date of directions hearing:

Counsel for the Applicant:

Solicitors for the Applicant:

Counsel for the Respondent:

Solicitors for the Respondent:

Counsel for the Other Party:

Solicitors for the Other Party:

17 April 2023

Mr Alex Solomon-Bridge

Ashurst

Ms Rachel Francois

Sparke Helmore Lawyers

Mr Andrew Fernon SC

HWL Ebsworth Lawyers