VAW (Kurri Kurri) Pty Ltd v Scientific Committee - [2003] NSWCA 297

No judgment structure available for this case.

Reported Decision:
128 LGERA 419
58 NSWLR 631

Court of Appeal

CITATION: VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) [2003] NSWCA 297

HEARING DATE(S): 7 March 2003; 10 March 2003

JUDGMENT DATE:
17 October 2003

JUDGMENT OF: Spigelman CJ at 1; Beazley JA at 61; Hodgson JA at 214

DECISION: Appeal dismissed with costs.

CATCHWORDS: ENVIRONMENTAL LAW - endangered ecological community - listing process in Threatened Species Conservation Act - validity of final determination to list community - distinction between initiating mechanisms - assemblage of species - particular area ADMINISTRATIVE LAW - validity of determinations of Scientific Committee - requirement to advertise reasons for determinations - where published reasons restated statutory formula - sufficiency of reasons - certainty of findings in final determination - non-compliance with statutory provision for nominations - availability of alternative power to support listing - whether different consequences of statute under alternative powers - reasonable apprehension of bias PRACTICE AND PROCEDURE - application to reopen case - discretion to allow reopening - where inconsistent tactical decisions and legal claims by both parties - where new evidence on critical matter in proceedings

LEGISLATION CITED: Acts Interpretation Act 1901 (Cth) s 25D
Broadcasting and Television Act 1942 (Cth)
Broadcasting Services Act 1992 (Cth) s 160
Environmental Planning and Assessment Act 1979 s 100A
Foreign Acquisitions and Takeovers Act 1975 (Cth) s 18
National Parks and Wildlife Act 1974 ss 118A, 181
National Parks and Wildlife Conservation Act 1975 (Cth)
Remuneration Tribunal Act 1973 (Cth) s 7
Threatened Species Conservation Act 1995 ss 3, 4, 6, 12, 17, 18, 19, 20, 21, 22, 23, 24, 25, 127, 128, 133, 134

CASES CITED: Abbott v Shire of Heidelberg [1926] VLR 199
Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1989) 88 ALR 287
Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1
Australian Television Services Pty Ltd v Marsden [2002] NSWCA 419
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Brown v Petranker (1991) 22 NSWLR 717
Brown v West (1990) 169 CLR 195
Canwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509
Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246
Dixon v Esperance Bay Turf Club (Inc) [2002] WASC 110
Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33
Harris v Great Barrier Reef Marine Park Authority (1999) 162 ALR 651
Harts Australia Limited v Commissioner of Australian Federal Police (2002) 117 FCR 358
House v The King (1936) 55 CLR 499
Iveagh (Earl) v Minister of Housing and Local Government [1964] 1 QB 395
Johns v Australian Securities Commission (1993) 178 CLR 408
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
Lockwood v The Commonwealth (1953) 90 CLR 177
Mercantile Mutual Life Insurance v Australian Securities Commission (1992) 40 FCR 409
MIMA v Bhardwaj (2002) 209 CLR 597
Minister for Immigration v Yusuf (2001) 75 ALJR 1105
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
Moore v The Attorney General (Irish Free State) [1935] AC 484
Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452
Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) (1979) 142 CLR 460
Ramos v Minister for Immigration & Multicultural Affairs (1998) 53 ALD 64
Tasker v Fullwood [1978] 1 NSWLR 20
Urban Transport Authority of New South Wales v Nweiser (1991) 28 NSWLR 471

PARTIES :
Appellant: VAW (Kurri Kurri) Pty Ltd
Respondent: Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995)

FILE NUMBER(S): CA 40555/02

COUNSEL: Appellant: S Rares SC / M Leeming
Respondent: B Walker SC / B Preston SC / S Pritchard

SOLICITORS: Appellant: Blake Dawson Waldron
Respondent: Vivienne Karen Ingram (NSW National Parks & Wildlife Service)

LOWER COURTJURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): 40110/2001

LOWER COURT
JUDICIAL OFFICER : Cowdroy J

CA 40555/02
LEC 40110/01

SPIGELMAN CJ
BEAZLEY JA
HODGSON JA
Friday 17 October 2003

VAW (KURRI KURRI) PTY LTD v SCIENTIFIC COMMITTEE (Established under s127 of the Threatened Species Conservation Act 1995)

FACTS
The Scientific Committee (the Respondent), established pursuant to the Threatened Species Conservation Act 1995, has as one of its functions the determination of ecological communities to be listed as endangered in Sch 1 of that Act. Mr Max Elliott nominated an ecological community described as “Kurri Kurri Open Forest” for such listing by the Respondent. The Respondent made a preliminary and then a final determination to list an area described as the Kurri Sand Swamp Woodland as an endangered ecological community. The Appellant objected to the listing and sought a declaration in the Land and Environment Court that the Respondent had made an invalid determination. The trial judge found that the determination was valid and dismissed the Appellant’s application.

HELD

A. (per Beazley JA, Spigelman CJ agreeing, Hodgson JA dissenting)
The nature and extent of reasons required to be given by the Respondent in advertisements of its preliminary and final determinations is dependent upon the terms, and the nature and purpose of the provisions of the Threatened Species Conservation Act 1995 requiring that advertisements be published and reasons for the determinations be stated in the advertisements. This is a different requirement from the provision that there be reasons for the making of the determinations. A restatement of the statutory formula governing eligibility for listing does not satisfy the requirement to give reasons in either s22(2)(c) or s24(c). Nevertheless, the breach of this requirement by the Respondent did not invalidate its determinations. [2], [99], [102], [105], [114], [116]

Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246 referred to; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 distinguished.

B. (per Hodgson JA, Spigelman CJ agreeing)

The Respondent’s resolution that it make a final determination subject to advice from counsel indicating that further action was required did constitute a final determination, although it was subject to a condition defeasant. The condition defeasant did not operate. [3], [226]

(per Beazley JA)

The Respondent’s resolution was a conditional, self-executing one. The Committee was legally entitled to make such a resolution. [124]

C. (per Beazley JA, Spigelman CJ and Hodgson JA agreeing)

Urban Transport Authority of New South Wales v Nweiser (1991) 28 NSWLR 471 applied. House v The King (1936) 55 CLR 499; Brown v Petranker (1991) 22 NSWLR 717, referred to.

D. (per Beazley JA, Spigelman CJ and Hodgson JA agreeing)

The Respondent’s final determination in respect of the Kurri Sand Swamp Woodland was sufficiently certain. The ecological community identified by the Respondent also satisfied the definition of such a community in s4(1) of the Act. [4], [185], [194], [214], [234], [235]

(per Spigelman CJ)

The consequences of the exercise of the Respondent’s listing power for those who may become subject to the associated offences found in the National Parks and Wildlife Act 1974 mean that the Respondent’s final determinations must satisfy a requirement of reasonable certainty. The final determination’s terms must enable a citizen to decide whether a specific location falls within it. The Kurri Sand Swamp Woodland final determination satisfied this test. [6]-[9]

Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33 cited.

E. (per Spigelman CJ, Beazley and Hodgson JJA agreeing)

Nothing in the scope or purpose of the Threatened Species Conservation Act rendered invalid an act of the Respondent purporting to be done under its statutory power to deal with nominations for listings but which was in fact supportable under a separate statutory power to commence or continue the listing process on its own initiative. The Respondent therefore had power to make determinations in respect of a community different from the one which was initially nominated. [54], [55], [58], [172], [214], [229]

Lockwood v The Commonwealth (1953) 90 CLR 177; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied.

Brown v West (1990) 169 CLR 195; Johns v Australian Securities Commission (1993) 178 CLR 408; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513; Mercantile Mutual Life Insurance v Australian Securities Commission (1992) 40 FCR 409; Canwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 considered.

Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 not followed.

F. (per Beazley JA, Spigelman CJ and Hodgson JA agreeing)

The trial judge was correct to dismiss the application that he disqualify himself. There were no grounds for a reasonable apprehension of bias. [10], [212], [214], [239]

ORDER

CA 40555/02
LEC 40110/01

SPIGELMAN CJ
BEAZLEY JA
HODGSON JA

Friday 17 October 2003

VAW (KURRI KURRI) PTY LTD v SCIENTIFIC COMMITTEE (Established under s127 of the Threatened Species Conservation Act 1995)

Judgment

1 SPIGELMAN CJ: I have read the judgment of Beazley JA in draft. I gratefully adopt her Honour’s outline of the facts, issues and statutory provisions. I have also read the reasons of Hodgson JA in draft.

2 I agree with Beazley JA on the reasons issue.

3 I agree with Hodgson JA on the conditional resolution issue. In any event, I agree with Beazley JA and Hodgson JA that the trial judge erred in failing to grant leave to reopen for the reasons their Honours give. Furthermore, leave should have been granted to adduce evidence which could have prevented the proceedings being disposed of on an entirely false and unmeritorious basis. The exigencies of the adversary system do not require the courts to entirely disengage from reality.

4 On the uncertainty issue and the definition issue, I agree with Beazley JA and with the further observations of Hodgson JA. I add the following comments.

5 The Threatened Species Conservation Act 1995 (“the Act”) confers power on the Scientific Committee to determine whether an ecological community should be listed in Schedule 1 pursuant to s17, as set out by Beazley JA. Section 25 of the Act provides for the amendment of that Schedule on publication of a final determination. The powers reposed in the Scientific Committee with respect to listing are wide. The scope, purpose and subject matter of the legislative scheme is concerned with matters – often defined in general terms – in which questions of degree and judgment are necessarily involved. In order to carry into effect the legislative objects of the Threatened Species Conservation Act, the wording of final determinations must be sufficiently flexible as to enable the protection of communities through periods of seasonal and climactic variation.

6 It is the consequences of the exercise of the Scientific Committee’s listing power for those who may become subject to the associated offences found in other legislation, namely the National Parks and Wildlife Act 1974, as set out by Hodgson JA, that render it necessary to imply a requirement of reasonable certainty. People should know when they are, or are likely to be, at hazard of committing an offence.

7 The terminology directly relevant to the present case is the definition of an ecological community as “an assemblage of species in a particular area”. The use of the word “assemblage” does not suggest that either the nomination of species or identification of an area requires a high degree of specificity: c/f Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 at 44. To satisfy the requirement of certainty to an appropriate standard, the terms of the Scientific Committee’s final determination must enable a citizen to decide whether a specific location falls within it. This does not necessitate the enumeration of the minimum number of species that must be found together to constitute the community, nor the provision of maps indicating where the community may be found.

8 In my opinion, the Kurri Sand Swamp Woodland (“KSSW”) final determination satisfies the requirement of reasonable certainty of expression. As to the “particular area” to which it applies, the community must be found on certain specified soils in the Sydney Basin Bioregion. It was noted that the community had been known to occur in the Kurri-Kurri – Cessnock area in the Cessnock local government area, but may occur elsewhere in that general area, but not in the specific local government area. The restriction to the Kurri-Kurri - Cessnock area is, in my opinion, sufficient. The assemblage of species listed must be found within this area and on the type of soils identified, in order to constitute the KSSW. As to the specificity of the assemblage, I would adopt the reasons of Beazley JA and add the following. Two rare and defining canopy species were described as “generally” present in the KSSW, and typical species were listed for all strata below the canopy – the shrubby, the lower and the ground. This is reasonably capable of ascertainment in a particular case.

9 The intricacy of all ecological communities means that some indeterminateness is bound to arise from the form of expression used to describe them. However, in my opinion, on the facts of the present appeal, this is not such as to invalidate the final determination in this case.

10 I agree with Beazley JA on the Procedural Issue and the Disqualification Issue.

11 I wish to state my own reasons on the Nomination Issue.

The Nomination Issue

12 The Appellant contends that the Respondent had no power to make either the Preliminary Determination or the Final Determination, on the basis that each identified an ecological community other than that nominated pursuant to s18(2)(b) of the Act. It contends that each of the Determinations was materially different to the nomination originally made by Mr Max Elliot QC, as elaborated by Mr Elliot in subsequent communications with the Scientific Committee.

13 The relevant statutory provisions appear in the judgment of Beazley JA. Section 18 identifies three mechanisms by which the process of making a determination under Div 3 of Pt 2 of the Act can be initiated, namely:

· By the Scientific Committee itself;

· By request from the Minister;

· By nomination of any person.

14 The significance of the Committee making a Determination upon its own initiative must be seen in the light of s17(2), which obliges the Committee to keep the lists in the respective Schedules of the Act under review.

15 Sections 19, 20 and 21 outline certain procedural steps and powers relating to the consideration of an ecological community after a nomination has been made. Sections 22 and 23 relate, respectively, to the making of a Preliminary Determination and a Final Determination and refer to each of the three mechanisms of initiation compendiously as giving rise to “a proposal” which the Committee must consider and decide whether or not to support (s22) or whether or not to accept (s23). Such separate reference as there is in ss22 and 23 to “a matter initiated by means of a nomination” uses language of considerable generality by identifying the matter as “a case involving a nomination” (s22(2)(a), s23(2) and s24(a)).

16 The primary contention of the Appellant is that the ecological community identified in a nomination determines the power capable of being exercised by the Committee. If the Committee wishes to initiate its own proposal, by way of alternative or supplement to the proposal contained in a nomination, then it must do so distinctly. The Determinations upon which the Committee eventually resolved, the Appellant submits, were materially different from anything contained in the nomination by Mr Elliot as elaborated in further communications. The Committee erred in law, the Appellant submits, by dealing with a proposal which had not in fact been made under any of the initiating mechanisms provided for in s18.

17 The Respondent submits that the three different mechanisms in s18 of the Act for initiating consideration by the Committee of a proposal to add a species, population or ecological community to the Schedules of the Act, are alternatives and are not mutually exclusive. The Respondent sought to uphold the Determinations, if there be any material distinction between the nomination and the Preliminary or Final Determination of the Committee, on the basis that the ability to make a Determination on its own initiative was always available to the Committee as an alternative source of power under s18(1) of the Act. It did not matter if the nomination route in s18(2)(b) proved in some way defective.

18 In its written submissions, the Appellant relied upon the observations of Bowen CJ in Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 at 10 where his Honour said:

“… where an administrative body which states it is exercising a particular power in laying down a general rule lacks power on the stated ground, but could have laid down the rule validly under another head of power, it would generally be wrong for a court to uphold the rule as if it had been made under the unstated head of power, particularly where the consequences for the citizen of each exercise of power are different.”

19 The Appellant asserts that the process of amending the Schedules to the Act is equivalent to the kind of rule of general application to which Bowen CJ referred. By reason of the effect of a Determination being to incorporate the subject matter in a list contained in a schedule to an Act, the Appellant sought to characterise the Determination as “legislative”.

20 The reasoning of Bowen CJ in the Saatchi & Saatchi case, and the reasoning to similar effect of Fox J in that case, has been treated with considerable reserve in subsequent authorities. (See Mercantile Mutual Life Insurance v Australian Securities Commission (1992) 40 FCR 409 esp at 412, 424-425 and 435-437; Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1989) 88 ALR 287 at 303-304; Canwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509 at 530-531; Harris v Great Barrier Reef Marine Park Authority (1999) 162 ALR 651 at [8]-[18].) In my opinion, the reasoning of Bowen CJ in the passage on which the Appellant relies is stated too widely and should not be followed.

21 The reasoning of Bowen CJ and Fox J in the Saatchi & Saatchi case stands in marked contrast to a number of other statements of a contrary principle.

22 In Lockwood v The Commonwealth (1953) 90 CLR 177 at 184, to which Bowen CJ referred without explaining its inapplicability, Fullagar J said:

“It is, I think, a settled principle that an act purporting to be done under one statutory power may be supported under another statutory power …”

23 To similar effect is the statement in a five judge joint judgment of the High Court in Brown v West (1990) 169 CLR 195 at 203, delivered after Saatchi & Saatchi:

“However, the validity of the Tribunal’s determinations is unaffected by mistaking the source of the power to make them.”

Moore v The Attorney General (Irish Free State)

R v Bevan; Ex parte Elias and Gordon

24 Brennan J relied on the same authorities in Johns v Australian Securities Commission (1993) 178 CLR 408 at 426 for the following proposition:

“When a power is exercised, a mistake in the source of the power works no invalidity. Validity depends simply on whether a relevant power existed.”

“The question is not one of intention but of power, from whatever source derived.”

25 In Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 618, Gummow J stated the proposition in the following way:

“… the validity of an administrative act is not necessarily impugned by there having been a mistake as to the source of the power stated by the decision-maker as that upon which reliance was placed.”

26 In Abbott v Shire of Heidelberg [1926] VLR 199 at 201, Cullen J reached the same conclusion as the Court reached in Saatchi & Saatchi. However, the authority of this judgment has been doubted (Ramos v Minister for Immigration & Multicultural Affairs (1998) 53 ALD 64).

27 Consideration of this issue in the authorities often proceeds in terms of a statement of “general principle”, of the general character described by Fullagar J in Lockwood as a “settled principle”, with an acknowledgement that this “general principle” has limits or exceptions. (See e.g. Saatchi & Saatchi at 22; Mercantile Mutual Life Insurance at 412; Harts Australia Limited v Commissioner of Australian Federal Police (2002) 117 FCR 358 at [161]; Dixon v Esperance Bay Turf Club (Inc) [2002] WASC 110 at [155]-[158].)

28 In the present case the Appellant accepted such a general principle. However, it submitted that the principle relied upon by the Respondent did not apply to a “general rule” or a “rule of general application” or a decision of a character which can be characterised as “legislative”, relying on the references by Bowen CJ in Saatchi & Saatchi to a “general rule”.

29 In my opinion it is not always helpful to state the issues that arise in such a context in terms of a “general principle” subject to “limits” or “exceptions”. The issue is always one of statutory interpretation and is dependent on the particular statutory regime under consideration.

30 This approach is consistent with the proposition advanced by Gummow J in Newcrest Mining to the effect that a mistake as to the source of power does not “necessarily” impugn the validity of an administrative act.

31 His Honour’s focus on the particular statutory regime was manifest in Mercantile Mutual Life Insurance at 437, where his Honour said:

“In my view, the truth of the matter can only be found by analysis of the particular statute or other written law said to authorise or empower the making of the decision in question. Having regard to any specification of manner and form and, on a more general level, to the subject matter, scope and purpose of the law, is it a requirement that the decision-maker specify in writing the source of the authority relied upon?

Tasker v Fullwood

TVW Enterprises Ltd v Duffy (No 3)

Broadbridge v Stammers

Formosa v Secretary, Department of Social Security

Saatchi & Saatchi

32 What is needed in each case is a careful analysis of the statutory head of power in fact relied upon and the alternative head of power open to be relied upon, to determine the effect of a failure to refer to or rely upon the head of power not relied on. The particular circumstances of Mercantile Mutual Life Insurance raised an issue that could be characterised, as Gummow J did, in terms of whether the decision-maker was required to state the source of authority. In different contexts analogous issues arise, but not necessarily in that way.

33 Gummow J’s reliance on the analysis in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 and subsequent authorities, has been confirmed by the joint judgment of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93]. To adapt the test for validity propounded in that judgment at [93] (in lieu of the distinction between mandatory and directory provisions) to the issue of statutory interpretation which arises in the circumstances presently under consideration:

The test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in reliance on an inappropriate statutory power, but which could be supported by another statutory power, should be invalid.

34 There will be occasions when the alternative head of power cannot properly be seen to be available to the decision-maker who invoked an impermissible head of power.

35 The reasoning of the Court in Abbott v Shire of Heidelberg is in a very narrow compass. The issue in that case was whether or not a council’s decision with respect to the physical removal of a home, which purported to be made pursuant to a power to regulate the erection of dwellings, could, in the alternative, be supported by the distinct power to regulate traffic. The actual result in that case is probably right because the facts, matters and circumstances required to be taken into account in the exercise of the power to regulate traffic would differ considerably from the facts, matters and circumstances required to be taken into account in the exercise of a power to regulate the erection of buildings.

36 To similar effect is the reasoning of Gummow J in Newcrest Mining. In that case proclamation of an extension to the Kakadu National Park under the National Parks and Wildlife Conservation Act 1975 (Cth) had the effect that the Commonwealth acquired certain land and minerals to a depth of 1,000 metres. Pursuant to Mining Regulations, under which a grant of certain goldmining leases had been made, there was a proviso in the lease that the Crown could “resume possession of any portion of the surface of the land … for any other public purpose whatsoever”. Gummow J said at 618:

“… what was done by the Proclamations differed markedly from that which was allowed by the proviso in the prescribed forms.”

Lockwood v The Commonwealth

37 In Saatchi & Saatchi itself the statutory scheme was of critical significance to the conclusion to which the Court came. The Court was concerned with the Broadcasting and Television Act 1942 (Cth) in the form it was at the time. The Australian Broadcasting Tribunal had two distinct functions under the Act; first, to determine standards for the broadcasting of programmes, including advertisements and, secondly, to determine the conditions upon which advertisements could be broadcast. The Act expressly provided that a failure to comply with standards constituted a breach with specific consequences under the statute. In the case of a breach of condition, however, there was no such express provision, although breach of condition could be of significance, for example, when a license came up for renewal.

38 It was in a context where there was such a distinction that Bowen CJ said at 9:

“A licensee is entitled to know what source of power the Tribunal is relying on. Where a statutory authority has purported to exercise one of its powers but has in fact acted outside that power, it would only be in exceptional circumstances that the Act could be upheld as a valid exercise of another head of power.”

.

39 In Saatchi & Saatchi, Fox J drew a similar distinction between the power to lay down a “standard” and the power to impose a “condition” and came to the same conclusion as Bowen CJ: it was not open to the Tribunal to proceed on the basis that its relevant notice related to “conditions”. A person subject to the documents would have understood their content in the particular statutory context relating to standards (see at 16-17).

40 Wilcox J dissented on the characterisation of the Tribunal’s decision. He concluded that, although it was expressed in terms of being a “standard”, it was in substance a “condition”. Had he been of a different view, his Honour indicated that the case would have fallen within an “exception” to the “settled principle” identified by Fullagar J in Lockwood v The Commonwealth, which exception Wilcox J expressed in the following way at 23:

“… I am of the view that another exception ought to be the case where a decision to uphold the validity of the action by reference to the alternative ground may conceivably visit on persons affected by the action consequences different from those which would have applied had the original power been upheld. People who have conducted their affairs upon the basis that a particular power, with particular consequences, has been invoked by a statutory authority should not be confronted with a finding that the action of the statutory authority was valid for a different reason, involving different consequences.”

41 The reasoning of Wilcox J in Saatchi & Saatchi, but for a different view his Honour took of the facts, would have led to the same result as Bowen CJ and Fox J. However, the way his Honour expressed his reasons is consistent with other authority and should be preferred to that of Bowen CJ and Fox J. His Honour identified the statutory scheme as the determinative factor, i.e. the difference in the consequences of the alternative sources of power.

42 Black CJ also highlighted the centrality of the statutory regime, again in the language of a “general principle” subject to exceptions, in Mercantile Mutual Life Insurance at 412:

Saatchi

R v Bevan

Ex parte Elias and Gordon

Brown v West

43 In the Mercantile Mutual Life Insurance case the Australian Securities Commission mistook the source of its power. However, that was of no significance. As Black CJ said at 412-413:

Corporations Law,

44 Brown v West concerned s7 of the Remuneration Tribunal Act 1973 (Cth). The Tribunal had authority under subs (1) to “inquire into, and determine, the allowances … to be paid … to members of the Parliament …”. Alternatively, where the Tribunal was conducting an inquiry under one of several subsections of s7, it had power by s7(4)(b) to inquire into a matter specified in a notice in writing given by the Minister. As the joint judgment of the five judge bench of the High Court said at 203-204:

“In response to a request by the Minister for Industrial Relations, expressly to be made pursuant to s 7(4)(b), to inquire into and determine or report on matters including ‘Postage’, the Tribunal purported to make its determinations under s 7(4)(a) and (b). If the postage allowance as determined is truly ‘an allowance’ … – the power to determine the postage allowance flowed not from sub-s (4)(b) but from sub-s (1). However, the validity of the Tribunal’s determinations is unaffected by mistaking the source of the power to make them … Whether the power be found in sub-s (1) or in sub-s (4)(b) the power is ‘to determine’ a postage allowance and that is the power which the Tribunal exercised and, by concession, exercised validly.”

45 Again it can be seen that the provisions of the statute were decisive. There was no material difference of any character between the power to determine an allowance by the Tribunal on its own initiative, as distinct from its power to determine an allowance on the reference by the Minister. In the circumstances of that particular statute one power was applicable and the other was not, although the decision was purported to be made under the latter. The only material difference between these facts and the present case is that the two sources for initiation of the procedures under the Act presently under consideration were both available.

46 The scheme of the legislation also proved decisive when a similar issue arose in Canwest Global Communications. Section 18(4)(a) of the Foreign Acquisitions and Takeovers Act 1975 (Cth) set out two circumstances in which the Treasurer could make an order directing persons to dispose of shares, where the acquisition of those shares was found by the Treasurer to be contrary to the national interest. The first such situation was when a company came under the control of a foreign person for the first time. The second, was a situation in which a company, already controlled by foreign persons, came under the control of different foreign persons. Hill J rejected the submission that the alternative source of power was available (at 530-531). The Treasurer had failed to take into account the effect of the change in foreign ownership, by approaching the determination of the national interest as if the relevant company had fallen under the control of a foreign person for the first time.

47 In Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 the Minister purported to give approval for the development of a mine pursuant to State Environmental Planning Policy No 45 – Permissibility of Mining. One of the issues that arose in the proceedings was whether, on the basis that that consent was not valid, the Minister could have granted the consent pursuant to s100A of the Environmental Planning and Assessment Act 1979. The concepts were different, in the sense that pursuant to the State Environmental Planning Policy the issue was whether the mine was a “permitted development”. The issue under s100A arose in the context of making decisions about a “prohibited development”.

48 Cole JA, with whom Handley and Sheller JJA agreed, said at 87:

“There was no distinction required by the procedures for advertising or objecting to a development application, or advertising or conducting an inquiry …, dependant upon whether a development was permissible or prohibited. The procedures were the same, and Rosemount did not allege that there was any deficiency in the procedural steps taken in relation to the development and the holding of the inquiry …”

“The environmental aspects of the development are in truth the same whether the development be permissible or prohibited.”

49 At 88-89 Cole JA went on to consider a submission to the effect that the considerations to which the Minister was obliged to have regard under the Act differed from those required to be taken into account under the State Environmental Planning Policy. At 89 his Honour rejected this submission, concluding that the matters to be considered under the two alternative bases were the same. He concluded, accordingly, that s100A was a valid and available alternative source of power to sustain the consent.

50 The absence of any pertinent distinction in the content of and procedural requirements for an alternative source of power, not in fact relied upon, was also emphasised in the judgment of Williams J in R v Bevan; Ex parte Elias and Gordon at 487. In that case a Rear Admiral who had authority to convene a court martial under both the British statute, with respect to naval personnel placed under the authority of the Royal Navy, and also with respect to Australian ships under Australian authority, purported to act under the latter, when he should have acted under the former. Williams J said at 487:

“Even if he did err as to the source of an authority which he undoubtedly possessed his mistake in no way affected the personnel of the court or its proceedings, so that all the conditions on which the right of the court-martial to exercise jurisdiction depended were in fact fulfilled. His mistake under such circumstances would be in a non-essential matter which would not amount to want of jurisdiction.”

51 Although Saatchi & Saatchi may well be supportable on the basis of a material distinction between the alternative sources of power, the reasoning relied upon by the Appellant in this case, is not, in my opinion, consistent with these other authorities.

52 In the extract from the judgment of Bowen CJ at 10 of Saatchi & Saatchi, which I have quoted above, his Honour expressed the proposition that a decision-maker was able to rely on an alternative head of power to be “generally” wrong and that that was so “particularly where the consequences for the citizen of each exercise of power are different”. In Saatchi & Saatchi the consequences of the exercise of a power to determine a “standard” differed from the consequences of the exercise of a power to impose a “condition”. As noted above, Wilcox J emphasised this difference.

53 Lockhart J in Mercantile Mutual Life Insurance at 424-425 distinguished Saatchi & Saatchi on the basis that the court was there concerned with “rules of general application”. However, a review of the authorities suggests that this is not, of itself, a material differentiating factor. Black CJ and Gummow J focused their observations distinguishing Saatchi & Saatchi on the absence of any difference in the consequences from the exercise of the alternative heads of power under consideration in Mercantile Mutual Life Insurance.

54 This kind of difference is always a material consideration to be assessed by a court in determining whether or not conduct can be upheld as valid, even though the decision-maker was purporting to act under a head of power which did not authorise the action. Saatchi & Saatchi should be understood as giving determinative weight, in the circumstances of that case, to the different consequences of the statute under the alternative head of power. Whether such weight should be given to such a difference in other contexts must depend on consideration of the statutory regime as a whole.

55 In the present case no aspect of the procedure or of substance differed in any material respect depending on whether the matter was commenced upon the initiative of the Committee or upon nomination by a third party. Notices were required, and in the event given, to the nominating party, but the process of public inquiry, the conduct of investigations by the Committee, the scope of relevant considerations, the substance of the tests to be applied and the consequences of the listing did not differ in any respect depending on the source of the initial trigger mechanism. There were additional procedural requirements in the case of a nomination, which the Committee observed. There were no requirements relevant to self-initiated proposals which were not observed.

56 To use the terminology of the cases quoted above, the initiating mechanism:

· “in no way affected … the proceedings … so that all the conditions on which the right of the (Scientific Committee) to exercise jurisdiction depended were in fact fulfilled”. (R v Bevan; Ex parte Elias and Gordon)

· “the power is to determine (a proposal for inclusion) and that is the power which the (Committee) exercised.” (Brown v West)

· “ … no consequence attached to the specification of a source of power that did not in fact exist. The circumstances relevant to the proper exercise of the power were exactly the same whether the source of power was (s18(1) or s18(2)(b)) … it was quite immaterial whether the source was (s18(1) or s18(2)(b)).” (Mercantile Mutual Life Insurance per Black CJ)

· “Nor does reliance upon one rather than another head of power lead to any difference in the consequences for third parties.” (Mercantile Mutual Life Insurance per Gummow J)

· “There was no distinction required by the procedures … dependant upon whether (the proposal was initiated under s18(1) or s18(2)(b)).” And “The environmental aspects of the (proposal) are in truth the same whether the proposal was (initiated under s18(1) or s18(2)(b)).” (Rosemount Estates)

57 On the other hand, it could not be said that:

· “the scope of relevant considerations differed” (Abbott v Shire of Heidelberg)

· “what was done … differed markedly” (Newcrest Mining)

· “the consequences … of each exercise of power are different” (Saatchi & Saatchi)

58 There is no aspect of the scope and purpose of the statute, or of its content, which suggests that an act done in reliance on a process initiated by nomination, if not supported under such process but which could be supported by a process commenced or continued on the initiative of the Committee, should be invalid (Project Blue Sky).

59 In my opinion, the Appellant should fail on the “Nomination Issue”.

60 I agree with the order proposed by Beazley JA.

61 BEAZLEY JA: This is an appeal from a decision of Cowdroy J in the Land and Environment Court in which his Honour dismissed the appellant’s application seeking a declaration that the respondent (the Scientific Committee) had made an invalid determination pursuant to s.23 of the Threatened Species Conservation Act 1995 (the Act).

The Act

62 The Act has as its objects the conservation of biological diversity, the prevention of the extinction of threatened species, populations and ecological communities and the protection of the critical habitat of threatened species. The specific objects are set out in s.3.

63 The Scientific Committee is established as a body corporate under s. 127 of the Act.

64 One of the functions of the Scientific Committee is “to determine which ecological communities are to be listed under [the Act] as endangered and to advise the Director-General [of National Parks and Wildlife] on the identification of their critical habitat”: s.128(2)(c).

65 Part 2 of the Act deals, inter alia, with the listing of threatened species, populations and ecological communities. Division 1 of Pt 2 provides for lists of endangered species, populations and ecological communities to be contained in Schedule 1 to the Act: s.6. Division 2 provides for eligibility for listing in the Schedule. In particular, s. 12 provides:

(a) It is likely to become extinct in nature in New South Wales unless the circumstances and factors threatening its survival or evolutionary development cease to operate, or

(b) it might already be extinct.”

66 An ‘ecological community’ is defined in s.4 to mean:

“an assemblage of species occupying a particular area.”

“any defined sub-species and taxon below a sub-species and any recognisable variant of a sub-species or taxon.”

67 Division 3 provides the procedure for listing. Relevantly, ss. 17 and 18 provide:

17. Scientific Committee responsible for lists

(1) The Scientific Committee is responsible for determining whether any species, population, ecological community or threatening process should be inserted in or omitted from Schedule 1, 2 or 3 or whether any matter in those Schedules should be amended.

(2) Accordingly, the Scientific Committee must keep the lists in those Schedules under review and must, at least bi-annually, determine whether any changes to the lists are necessary.

18. Who may initiate action for listing

(1) The Scientific Committee may make a determination for the purposes of this Division on its own initiative.

(2) The Scientific Committee may also make a determination:

(a) following a request by the Minister, or

(b) on a nomination, made in accordance with this Division, of any other person.

68 Section 19 provides that a nomination under s.18(2)(b) may be made by “any person”. A nomination must be “in writing addressed to the Chairperson of the Scientific Committee”. There is no express power to amend a nomination.

69 The National Parks and Wildlife Act 1974 creates offences, inter alia, for the harming or picking of any threatened species, populations or ecological communities contained in the Schedule to the Act: see Pt 8A of the National Parks and Wildlife Act.

70 The Scientific Committee is required by s.21 “to consider each nomination as soon as practicable after it is made”. It may seek additional information before considering the nomination: ss.20, 21(1). If it rejects a nomination, it must notify the Minister, the Director-General and the person who made the nomination and give reasons for the rejection: s.21(4).

71 After considering a nomination the Scientific Committee must make “a preliminary determination as to whether the proposal should be supported or not supported”: s.22(1).

72 Section 22(2) then provides for notification to the person who made the nomination, Minister and Director-General. Section 22(2) also provides for publication of notice of the preliminary determination. Sub-sections 22(3) and (4) prescribe the content of the notice.

73 As the scope and operation of s.22 is in issue in the proceedings it is appropriate to refer more fully to its provisions:

22. Scientific Committee’s preliminary determination

(1) The Scientific Committee, after considering a proposal raised on its own initiative or in response to a request from the Minister or a nomination by another person, must make a preliminary determination as to whether the proposal should be supported or not supported.

(2) As soon as possible after making a preliminary determination, the Scientific Committee must:

(a) in a case involving a nomination, notify the person who made the nomination, the Minister and the Director-General, and

(b) in a case of a proposal raised on its own initiative or in response to a request from the Minister, notify the Minister and the Director-General, and

(c) publish notice of its preliminary determination and the reasons for it in a newspaper circulating generally throughout the State and, if the determination is likely to affect a particular area or areas (other than the State as a whole), in a newspaper circulating generally in that area or areas, and

(d) publish notice of the making of the preliminary determination in the Gazette.

(3) The notice must:

(a) state that the preliminary determination has been prepared, and

(b) specify the address of the place at which copies of the determination may be inspected, and

(c) invite persons to make written submissions to the Director-General about the determination, and

(d) specify the address of the place to which submissions about the determination may be forwarded and the date by which submissions must be made.

(4) The notice must specify the date by which and the address of the place to which any person may forward written submissions to the Scientific Committee about a preliminary determination.

…”

74 Under sub-s. 22(5) the Scientific Committee must consider all written submissions received by or on the date specified in the notice which must not be “more than 150 days after the date on which the notice was first published under [the] section”.

75 Section 23 then makes provision for the “Scientific Committee to make a final determination”:

“(1) The Scientific Committee must either accept or reject a proposal for inclusion, or amendment, of matter in or omission of matter from Schedule 1, 2 or 3, and must give reasons for the determination.

(2) In a case involving a nomination, the Scientific Committee must make a determination under this section within 6 months after:

(a) the making of the nomination, or

(b) if additional information has been requested by the Scientific Committee, after that information has been provided or the period specified for its provision has expired.”

76 The Scientific Committee must notify its final determination to the nominator: s.24(a) and the Minister and the Director-General: s.24(1)(b); and publish notice of its determination and the reasons for it in a newspaper which circulates in that State and a newspaper circulating generally in the area affected by the nomination: s.24(c). Notice of the making of the determination must also be published in the Gazette: s.24(d).

Facts

77 This case relevantly concerns a nomination made under s.19(1) by Mr. Max Elliott of an ecological community described in the nomination as “Kurri Kurri Open Forest”. The more particular description was:

“This community occurs on old sandy and lateritic soils around the townships of Heddon Greta, Kurri Kurri, Weston and Cessnock. The dominant tree species are Eucalyptus parramattensis sub. Sp. Decadens and Angophora bakeri. The understorey contains a diverse flora of heath plants, many epacrids, pea bushes, grevillea sp., banksia sp. And cycads.”

78 The nomination was dated 20 March 2000 and its receipt was acknowledged by the Scientific Committee on 30 March 2000. It was placed on the agenda for the Scientific Committee’s 45th meeting to be held on 18th April 2000. At that meeting the Committee “agreed to defer the matter until advice from the nominator is received”. The Committee also requested that “advice be sought from Travis Peake on other communities for consideration for listing”.

79 At its 47th meeting on 20th June 2000, the Scientific Committee noted receipt of “the recoloured map”. It appears this came from Mr. Elliott.

80 On 28th June 2000 Mr. Elliott provided further information in respect of the nomination. The various experts who were consulted also provided advice.

81 On 18th July 2000 the Scientific Committee determined to prepare a “draft preliminary determination”. During the course of its considerations the Committee identified the nomination as the Kurri Sand Swamp Woodland to accord with mapping and classification work carried out by the National Parks and Wildlife Service. After further consideration over a number of meetings and a consideration of the draft, the Scientific Committee resolved on 14th November 2000 to ”make a preliminary determination to support the proposal to list the Kurri Sand Swamp Woodland as an endangered ecological community on Pt 3 of Schedule 1 of the Act” (sic).

82 The Preliminary Determination was made and notice thereof published in the Gazette on 8th December 2000.

83 Notices of the Preliminary Determination were published in the Newcastle Herald on 8th December 2000 and in the Cessnock Advertiser on 13th December 2000.

84 The appellant objected to the proposed listing. The objection was considered at the Scientific Committee’s 54th meeting held on 30 January 2001 when the Committee passed the following resolution:

“… that the Committee make a final determination to list the Kurri Sand Swamp Woodland in the Sydney Basin Bioregion as an endangered ecological community on Part 3 of Schedule 1 of the Act subject to any matters raised by NPWS Legal Services or Central CPPD requiring further consideration by the Committee.”

85 On 9th February 2001 the Chairperson of the Scientific Committee invited the appellant to provide any additional submissions by 16th February 2001.

86 On 16 February 2001 the appellant, through its solicitors, made a further detailed submission.

87 On 12th April 2001 the Scientific Committee considered the nomination, including reviewing the information it had received in respect of “the community”. The Minutes of the meeting record:

“The Committee noted the advice to consider whether any further information on the community exists. The Committee noted Mr. Robertson indicated in his submissions that he had undertaken inspections of some sites but had not advised the location of the sites. The Committee provided an opportunity for Mr. Robertson, through Blake Dawson Waldron to provide any further relevant information to the Committee. The Committee agreed to seek advice from Brian Preston SC on whether a further more explicit request for information is required.

subject to the advice from Brian Preston SC

88 The reference to Mr. Robertson in the first paragraph above was a reference to Dr. Robertson, the appellant’s expert who was the author of the appellant’s submissions to the Committee. The reference to Mr. Preston SC was a reference to a specialist senior counsel in land and environment law.

89 On 31st May 2001 the Committee advised Mr. Elliott that a final determination had been made “to list the Kurri Sand Swamp Woodlands in the Sydney Basin Bioregion as an ENDANGERED ECOLOGICAL COMMUNITY on Pt 3 of Schedule 1 of the Act”. A copy of the Final Determination was attached. I will refer to the terms of the Final Determination so far as is necessary later in these reasons. Notices were published in the newspapers and the Notice of Determination was gazetted on 1st June 2001.

Issues on Appeal

The appellant raised seven issues on the appeal. Each will be considered in turn.

The ‘Reasons’ Issue: Ground 1

90 The appellant contends that the Committee effectively gave no reasons in either of its published advertisements of the Preliminary Determination and the Final Determination. It said that the advertisements did not comply with the requirements of s.22(2)(c) or s.24(c) respectively as they failed to explain why the Committee formed its opinion and supported the proposal.

91 The newspaper advertisement published in respect of the Preliminary Determination was in these terms:

“ NSW SCIENTIFIC COMMITTEE
Notice of Preliminary Determination

The Scientific Committee established by the Threatened Species Conservation Act has made Preliminary Determinations to list the following in the relevant Schedules of the Act.

Endangered Ecological Community (Part 3 of Schedule 1):

Kurri Sand Swamp Woodland in the Sydney Basin Bioregion Mount Gibraltar Forest in the Sydney Basin Bioregion.

The Committee is of the opinion that these Ecological Communities are likely to become extinct in nature in NSW unless the circumstances and factors threatened their survival or evolutionary development cease to operate.

Copies of these determinations may be inspected at the National Parks Centre 102 George Street, The Rocks, Sydney and all NPWS Area Offices/Visitors Centres during business hours.

Any person may make a written submission, which should be forwarded to:

Submissions must be received by 25th January, 2001

92 The advertisement of the Final Determination was in the same terms, save for the notification relating to the right to lodge submissions.

93 The trial judge held that these advertisements complied with the requirements of s.22 and s.24 respectively. He said:

sufficient to justify the Committee’s decision

reasons’

94 The appellant submitted that the terms of the advertisements amounted to no more that a statement that the Committee had formed the opinion that the nomination satisfied the statutory eligibility for listing under s.12(a). As such it was said not to amount to a statement of reasons as required by the Act. It was, on the submission, “no more than a statement of the ultimate facts on matters required by the legislature to be found”: Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at 687 per Aickin J.

95 The appellant submitted that s.22(2)(c) and s.24(c) required much more than that. This was apparent, it was said, when regard was had to a provision such as s.25D of the Acts Interpretation Act 1901 (Cth), which, it was contended, was in similar terms.

96 Section 25D provides:

“Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression ‘reasons’, ‘grounds’ or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.”

97 In Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246 the High Court said at 250;

“The purpose of s.25D appears to be to enable a person affected by a decision for which reasons must be given to be supplied with findings and a reference to the evidence or other material on which they were based so that he may shape the course of his future conduct accordingly. That purpose will not be effectuated when the information is to be given to him only after he has chosen and embarked upon a particular course.”

98 Section 25D is not a comparable provision to ss.22(2)(c) and 24(c). As its terms indicate, it is directed to a quite different purpose than are the advertisement provisions of the Act. Section 25D is directed to enabling a party affected by a decision that falls within its terms, to know not only the conclusion, but the findings of fact and the evidence upon which those findings were based. In the ordinary course that will be so as to enable that person to decide whether to challenge the decision.

99 More significantly however, s.25D does not relate to reasons in an advertisement. It is directed to the more formal provision of reasons such as in a determination, or statement of reasons, or in an advice to a party affected by a decision. That is not the purpose of ss. 22(2)(c) and 24(c). Section 22(2)(c) is directed at informing the public of a proposal in respect of which the Committee has formed a preliminary opinion as to listing under the Act. The requirement to inform the public is relevant for a number of reasons. A person might have an interest in objecting to the nomination, or in supporting it for different or additional reasons. Or a person might seek to add to or vary the species in the communities or the area to be made subject of the determination. Neither the Committee’s findings of material facts nor the evidence upon which those facts were found is relevant to those purposes. In any event, to include such information in the advertisement would be unworkable.

100 For the same reason Iveagh (Earl) v Minister of Housing and Local Government [1964] 1 QB 395 which was relied upon by the appellant does not assist it. That case involved an appeal to the High Court against a Minister’s decision under local planning laws. The requirement for reasons there, was, as Denning MR said at 410, to “enable the parties and the courts to see what matters [the Minister] has taken into consideration and what view he has reached on the points of fact and law which arise.”

101 A rejection of this part of the appellant’s argument does not however resolve the matter in issue. Whilst I agree with the appellant’s submission that the “reasons” stated in the advertisement are merely a restatement of the statutory formula in s.12(a), the question is whether that is sufficient. The Committee submits that it is, given that s.22(2)(c) appears in a statutory context where the extent of the reasons required is not specified, whereas the other matters which must be stated are listed exhaustively in s.22(3). The Committee submitted that given that context, and the provisions of s.12, all that was required was a statement of which of the two opinions it had formed under s.12. It expressed its submission in these terms:

for the reason

the requisite opinion under the relevant section

102 With respect, I do not agree with this approach either. In my opinion, the nature and extent of reasons required by s.22(2)(c) falls to be determined having regard to the terms of the section and the purpose underlying the requirement for giving reasons. I have already explained what that reason is. It is one thing to state that a determination has been made for the reasons that the Committee has “formed the requisite opinions under the relevant section”. It is another thing to state the reasons for determining that a particular statutory provision has been invoked or applies. In my opinion, s.22(2)(c) calls for the latter. It follows that a mere statement of the statutory eligibility for listing does not satisfy the requirement to give reasons in s.22(2)(c). The reasons do not have to be extensive, but they do have to inform a person reading the advertisement why the determination has been made.

103 Section 24(c) is in the same terms as s.22(2)(c). Its purpose, however, is not precisely the same as that which underlies s.22(2)(c) as there is no right to object to the Final Determination nor any right to make submissions. Submissions at that time would be superfluous. However, the advertisement still has the purpose of informing the public. One significant reason why the public need to be informed is because of the penal provisions which operate under the National Parks and Wildlife Act. The appellant also contends that the purpose for stating the reasons for the Final Determination under s.24(c) extends to providing sufficient reasons to enable a person to decide whether to bring proceedings to challenge the lawfulness of decision of the Committee. It submits, therefore, that the content of the reasons must be detailed in the sense required, for example, under s.25D of the Acts Interpretation Act 1901 (Cth), to which I have just referred.

104 I do not agree. If a person wishes to challenge the decision, resort would be needed to the full text of the Final Determination. The content of the reasons in the advertisement are not required to be co-extensive with the reasons for the Determination itself, nor, as a matter of practicality, could they be. To fulfil the purposes to which s.24(c) is directed, all that is necessary is the provision of sufficient information to enable a person to identify the species and why the Committee considered it should be listed. The reasons do not have to be extensive. But they do have to reveal the basis upon which the Committee finally determined that a listing should be made.

105 However, as was the case with the reasons in the advertisement of the Preliminary Determination, the advertisement stated no more than the statutory eligibility for the listing. That does not constitute reasons “for the decision”.

106 Accordingly, I consider that the Committee failed to comply with the requirements of s.22(2)(c) and s.24(c). The next question is what flows from that failure. The appellant contends that a failure to comply with s.22(2)(c) results in the invalidity of any subsequent Final Determination. It submitted that:

“Because the ability of the public to make submissions in part, at the very least depended, by force of s.22, on the publication in newspapers of reasons for the making of the Preliminary Determination, a failure to comply with s.22(2)(c) must have been intended by the legislature to result in the invalidity of any subsequent final determination.”

107 It followed, on the appellant’s submission that it was not available to the Committee, as a matter of power, to proceed to making the Final Determination.

108 In Project Blue Sky Inc & Ors. v. Australian Broadcasting Authority (1998) 194 CLR 355, their Honours in the majority judgment stated at 388-389:

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.”

109 Their Honour’s observed that traditionally, in determining when a failure to comply with a statutory provision would lead to invalidity, the courts had developed a distinction between mandatory and directory requirements.

110 Their Honours, having next explained why the mandatory/directory distinction was an inappropriate determinant of validity or invalidity, said at 390:

Tasker v. Fullwood

111 Although accepting that the mandatory/directory dichotomy is no longer an acceptable approach, the appellant submitted that the characterisation of certain types of requirements as one or the other continued to provide useful analogies as to whether a failure to comply with a statutory provision led to invalidity. Thus, in Halsbury’s Laws of England (4th Ed. Vol 1 para. 25) it is said:

give reasons for a decision

112 In Pearce and Geddes on Statutory Interpretation in Australia (5th Ed 2001 para. 11.24) the authors state:

Provisions that are intended to allow persons to make representations

113 The requirements of s.22(2)(c) and s.24(c) would, on these statements, lead to invalidity.

114 These statements however do not apply directly here. The scheme of Part 2 Div. 3 is not like the provisions of, for example, a planning law where an application or proposed development must be advertised before the decision making process is engaged. Here, the decision making process is engaged before public participation is invited. It is difficult, in those circumstances, to see that an advertisement which failed to comply with s.22(2)(c) would lead to invalidity.

115 In Project Blue Sky, in dealing with s.160 of the Broadcasting Services Act 1992, their Honours’ stated at 391:

rather than imposes essential preliminaries to the exercise of its functions

116 A similar situation applies here. The advertising provisions of s.22(2)(c), s.24(1)(a) and 24(1)(c) are not preliminary requirements to the making of the respective Determinations. They are subsequent notification provisions to provide information to the public for purposes discernable from the nature and scope of the Act and the particular Division of which the sections form part. In my opinion therefore, a failure to comply with either section does not lead to invalidity. I should add that much of the appellant’s argument on this issue referred to the statutory requirement to give reasons and the failure of the Committee to do so as amounting to jurisdictional error. However, s.22(2)(c) and s.24(1)(c) are directed to reasons being part of an advertisement. That is quite different from the prescriptive requirement to give reasons for the decision. That is not the issue here.

117 Accordingly, in my opinion, Ground 1 of the Notice of Appeal fails.

The Conditional Resolution: Ground 2 of the appeal

118 The appellant next challenges the validity of the Final Determination alleging that the Scientific Committee at no time made such a Determination, but rather only made a Conditional Determination. This issue raises both factual and legal considerations.

119 The Scientific Committee’s last consideration of the Nomination occurred on 24 April 2001. The Minutes of that consideration are set out at para. 27 above. On 31 May 2001, the Deputy Chairperson of the Committee advised Blake Dawson Waldron that their letter and the annexed report of Dr. Robertson had been considered. On 1 June 2001, the Notice of the Final Determination was published in the Gazette. There was no evidence tendered in the proceedings that Mr. Preston SC was asked to give or gave the advice as noted in the Minutes and Cowdroy J held at J.63 that there was “no evidence that Mr. Preston so advised”.

120 The Scientific Committee had attempted to lead such evidence, but only after it had closed its case. His Honour refused leave to reopen. Earlier, in an interlocutory application heard by Bignold J, see [2001] NSWLEC 182 the Committee had successfully resisted an application by the appellant to have access to Mr. Preston’s legal advice on the basis that it had not waived client legal privilege.

121 Cowdroy J held, that the resolution of 24 April 2001 was “conditional”. The appellant submits that a ‘conditional’ resolution is not authorised under the Act. I will return to that issue later. His Honour then held that the “condition was specific and self-executing, being dependent only upon Mr. Preston’s advice that further action might be required”. Having found there was no evidence of such advice, his Honour continued at 63:

certain

principle of finality

Winn v. Director-General of National Parks and Wildlife & Ors

122 The appellant submitted that his Honour’s conclusion, which inferentially must have involved a finding that Mr. Preston advised that further action was not required, was inconsistent with his Honour’s refusal to permit the Scientific Committee to re-open its case to tender the legal advice (Red 33-35). The thrust of the submission was that his Honour erred therefore in finding the condition had been fulfilled. In effect the appellant says there was no evidence upon which his Honour could make the finding.

123 I agree that his Honour’s refusal to permit the Committee to re-open and his finding that the Final Determination had been properly made do not sit comfortably together. However, this complaint does not advance the appellant’s case. The real questions raised by this issue are, can the Committee make a conditional but self-executing determination and if so whether that self-executing event must be proved to have occurred.

124 In my opinion, there is no reason in principle why a body corporate cannot make a conditional resolution. I would expect that such resolutions are common occurrences in corporate life. In support of its submission the appellant seeks refuge in the Act, stating there is no power that authorises a conditional resolution. However, in my opinion, that does not mean that such a resolution cannot be passed. The Committee is a body corporate and can do that which a body corporate can do, save only to the extent that its functions, operations and procedure are governed and/or proscribed by the Act. There is nothing in the Act, however, which affects the Committee’s ability to make a conditional resolution. In that circumstance I am of the opinion that it was lawfully entitled to do so. I am also of the opinion that the Committee could make a resolution in which the condition to which it was subject was self-executing. Whilst the Committee did not cite any authority to support its actions, it seems to me that if a court can make self-executing orders there is no reason, in principle, why a body corporate cannot make a self-executing resolution.

125 In relation to the next question, that is whether it is necessary to prove that the self-executing event occurred, the appellant raised another issue, namely whether the “24 April resolution contained a mechanism which enabled the Final Determination to be gazetted once Mr Preston SC gave whatever was the advice required to satisfy the condition.” [Orange 19 para 56.] As I understand this point it was that there was no evidence that the Committee or a delegate of the Committee had examined the advice to ensure that the condition had been fulfilled. In relation to that question it was further submitted that it was necessary for the Committee to engage in a consideration of the advice given by Mr. Preston in accordance either with s.133 or s.134 of the Act. Section s.133 and s.134 fall within Pt 8 of the Act, of which species the procedures of the Committee.

126 Section 133 prescribes the procedure for meetings of the Committee. Sub-s.(4) provides:

“A decision supported by a majority of the votes cast at a meeting of the Scientific Committee at which a quorum is present is the decision of the Scientific Committee.”

127 A quorum for a meeting is 6 members: (sub-s. 2). A decision of a majority of a quorum is a decision of the Committee.

128 Section 134(1) provides for the transaction of business outside a formal meeting by the circulation of papers among all the members. The sub-section then provides that:

“… a resolution in writing approved in writing by a majority of those members is taken to be a decision of the Scientific Committee.”

129 Any resolution approved under this subsection is to be recorded in the Minutes: sub-s.(4). Meetings may also be transacted by “telephone, close circuit television or other means”: Sub-s.(2).

130 There was no evidence that the Committee had considered Mr. Preston’s advice either formally or at a meeting in accordance with s.134, nor that it had appointed a delegate to do so. It was further submitted that the Committee could not, in any event, delegate the task of determining whether Mr. Preston’s advice affected the Determination. See Racecourse Co-operative Sugar Association Ltd. v Attorney-General (Qld.) (1979) 142 CLR 460 where Gibbs J said at 481:

“When a discretionary power is conferred by statute upon the Executive Government, or indeed upon any public authority, the power can only be validly exercised by the authority upon whom it was conferred. Its exercise cannot be delegate to someone else, unless the statute, upon its proper construction, permits such delegation.”

131 The submission in relation to delegation is not to the point as the Committee never contended that it had delegated its functions.

132 The appellant also submitted that there was no presumption of regularity which could be availed of in the circumstances. In support of this submission the appellant referred to MIMA v Bhardwaj (2002) 209 CLR 597 where Hayne J said at para. 151.

206 There was never any issue raised by the Committee either at hearing or on the appeal, that there had been any delegation either of the power to make the Final Determination or to consider Mr. Preston’s advice. The Committee’s case had always been that it had made a Determination subject to postponement of its operations until Mr. Preston’s advice had been received. I have already expressed the view that the Committee could make a conditional resolution and that the gazettal was an administrative act that did not require a resolution. Once this is accepted, this aspect of the appellant’s procedural issue falls away.

207 The appellant raised another procedural irregularity, namely, a failure to comply with the time limit in s.23(2). That section provides that the Committee must make a final determination within 6 months of, relevantly, receipt of any additional information requested under s.20. The Final Determination was not made within that time. The appellant contends that that failure leads to invalidity. The Committee contends to the contrary.

208 The appellant contends that the time limit in s.23(2) was “intended to go to validity otherwise they should have no function at all in distinguishing between determinations on a nomination and other determinations”. I am inclined to agree as a matter of principle. However, that does not resolve the issue in the appellant’s favour for the very reason that in this case there is another source of power to support the validity of the Determination. That being so, the failure to comply with the time limit specified in s.23(2) does not invalidate this Determination.

Disqualification Issue

209 The appellant finally contends that his Honour should have disqualified himself on the grounds of reasonable apprehension of bias. The appellant made an application that his Honour do so at the commencement of the hearing on 2 April 2002. The basis of the application was that 4 years previously, his Honour had imposed a penalty on the appellant (then known as Capral Aluminium Limited) following Capral’s plea of guilty to 3 charges under the Environmental Offences and Penalties Act 1989 of breach of licence conditions. His Honour imposed fines totalling $100,000.00. In the course of his reasons his Honour was critical of the general manager of Capral, a Mr. Coombe. Mr. Coombe is now the chief executive officer of the appellant.

210 The appellant claimed before his Honour on the application to disqualify that these proceedings involved an administrative challenge to an amendment to an environmental law which affected the appellant’s operating activities. It points out that the appellant’s smelter is located in the area forming part of the Nomination and it was that smelter’s licences that was the subject of the penalty proceedings.

211 These proceedings are however quite different as his Honour stated. Moreover, the appellant’s conduct is not under review, nor is the credit, the attitude or the conduct of Mr. Coombe. The subject proceedings are concerned with a challenge to the validity of determinations made by the Committee.

212 His Honour concluded “that a reasonable observer would not conclude there was any basis for apprehension of bias” and thus dismissed the application (Red 31). I agree and this ground should also be refused.

213 The appeal should be dismissed with costs.

214 HODGSON JA: In my opinion, the appeal should be dismissed. I agree substantially with the reasons of Spigelman CJ on the nomination issue, and I agree substantially with the reasons of Beazley JA on all issues in the case, except for the “reasons” issue. I will deal first with the reasons issue, and then briefly advert to the other issues in the case.

215 At the relevant time, s.22(2)(c) of the Threatened Species Conservation Act 1995 (the Act) required the Scientific Committee to “publish notice of its preliminary determination and the reasons for it” in one or more newspapers. The words “and the reasons for it” were subsequently deleted by the 2002 amendment to the Act. Section 23(1) of the Act required the Scientific Committee to “give reasons for” its final determination; and s.24(c) required it to “publish notice of the determination and the reasons for it” in one or more newspapers. The words “and reasons for it” were deleted from s.24(c) also by the 2002 amendment.

216 The notice of the preliminary determination in this case, as published in local newspapers, was in the following terms:

The Scientific Committee, established by the Threatened Species Conservation Act, has made a Preliminary Determination to support a proposal to list the Kurri Sand Swamp Woodland in the Sydney Basin Bioregion as an ENDANGERED ECOLOGICAL COMMUNITY on Part 3 of Schedule 1 of the Act.

The Committee is of the opinion that this Ecological Community is likely to become extinct in nature in NSW unless the circumstances and factors threatening its survival or evolutionary development cease to operate.

Copies of the Determination may be inspected at the National Parks Centre 102 George Street, The Rocks, Sydney and at all NPWS Area Offices/Visitors Centres during business hours.

217 A notice published in the Sydney Morning Herald was to the same effect, except for changes due to this notice referring to another ecological community as well.

218 The notice of the final determination in this case was to similar effect, apart from identification of the determination as a final determination and omission of reference to submissions.

219 It was submitted by Mr. Rares SC for the appellant that these notices could not satisfy the requirement that notice of reasons be published, because they did no more than state the opinion which was in any event required by s.12 of the Act, which is in the following terms:

220 Mr. Rares submitted that it was important that reasons for a preliminary determination be published, so that persons can exercise their rights under s.22 to make submissions. He noted that reasons were expressly required to be given for final determinations, so as to expose whether these determinations were justified; and submitted the word “reasons” must be given the same meaning in s.24(c) as in s.23(1).

221 There is force in these submissions, but in my opinion they overlook the distinction between giving reasons, and publishing notice of a determination and reasons. I accept that the reasons required to be given under s.23 must be more than a bald statement of a statutory formula. However, in my opinion “notice … of reasons” in these provisions does not mean a full statement of the reasons, but is satisfied by a notice giving an indication of the general nature of the reasons and information as to where the reasons themselves may be found.

222 In this case, the notices showed that the reasons were directed to s.12(a) rather than s.12(b); and they stated where “the determination”, plainly meaning a document containing more information about the matter, could be inspected. In my opinion, that was a sufficient indication of the general nature of the reasons, and sufficient information as to where the reasons themselves could be found, so as to amount to “notice … of the reasons” within each of the relevant provisions.

223 I would add that if I were wrong on this matter, I would agree with the view of Beazley JA that any breach in this regard did not invalidate the determination.

224 Next, I will look at the related issues called the “conditional resolution” issue and the “procedural” issue. What was resolved by the Scientific Committee on 24 April 2001 was that “subject to the advice from Brian Preston SC indicating that further action was required by the Committee, the Committee make a Final Determination …”.

225 It was submitted for the appellant that this was a conditional and not a final determination; that it provided no mechanism to determine whether or not the condition was satisfied; that there was no evidence of any subsequent meeting of the Committee which may have finalised the matter; that there was no evidence that the condition was satisfied; and that it was inconsistent for the primary judge to find the condition was satisfied when he refused leave to re-open the case by admitting evidence on the question.

226 In my opinion, the determination was a final determination, albeit subject to what might be described as a condition defeasant. In my opinion, the question of whether or not the condition did operate so as to defeat the determination is a question of fact that can be determined by the Court, so that there was no need for any mechanism to be set up to determine whether the condition operated, or for any subsequent meeting of the Committee. In my opinion, in the absence of any evidence about the condition, the subsequent publication of the notices of the determination and of the determination itself was sufficient, coupled with the presumption of regularity, to justify a finding that the condition defeasant did not operate.

227 In relation to the re-opening question, in my opinion the initial decision on privilege was wrong: in circumstances where the respondent was asserting that its dealings or absence of dealings with Brian Preston SC were such that the condition defeasant did not operate it was not open to it to assert privilege in relation to the content of those dealings. However, when that privilege was waived, the evidence should have been admitted unless there was prejudice to the appellant; and prejudice is not asserted. That gives rise to the question on appeal whether the appellant should be given an opportunity to further explore the evidence on this matter, an opportunity which was in effect lost because of the refusal of the primary judge to allow the evidence to be led. In my opinion, the answer to that question depends upon the Court’s assessment of whether there is any realistic possibility that this could make any difference to the result. In my opinion, there is no realistic possibility, so that the appellant fails on these issues.

228 I now will deal with the “nomination” issue. It is to be noted that what the Scientific Committee is to consider under s.22 of the Act is not a nomination as such, but rather a “proposal” which may be “in response to … a nomination”. Plainly in my opinion, a proposal in response to a nomination need not be identical to the nomination itself. In any event, plainly also the Scientific Committee can raise a proposal on its own initiative.

229 In circumstances where there is no relevant difference between the procedure or requirements for support, acceptance or rejection of a proposal in response to a nomination, on the one hand, and the procedure or requirements for support, acceptance or rejection of a proposal raised on the Scientific Committee’s own initiative, on the other hand, it just does not matter whether what was done in this case is correctly regarded as dealing with a proposal in response to a nomination or a proposal raised by the Scientific Committee on its own initiative.

230 There is one difference between the two situations: where the case involves a nomination, s.23(2) requires that the determination be made under s.23 within six months after specified dates. The lack of other differences between the two situations, plus the consideration that the Scientific Committee could at any time raise an identical proposal on its own initiative, confirms that this limitation period is one which determines how the Scientific Committee should properly act, but is not one the breach of which involves invalidity.

231 Next, I turn to what have been called the “uncertainty” issue and the “definition” issue. There is, as submitted for the appellant, a measure of uncertainty and lack of definition in the ecological community determined to be an endangered ecological community in this case.

232 However, this question must be addressed having regard to the approach taken by the legislature in the Act, and in particular to the definition of “ecological community” as “an assemblage of species occupying a particular area”. Although this definition refers to a particular area, plainly the terms of the definition are such that the area in question will generally be impossible of definition by precise boundaries: the very nature of “occupation” of an area by an “assemblage” of species (of plants and/or animals) in the wild is such that such an area cannot possibly be given precise boundaries.

233 Furthermore, what is contemplated is plainly a number of species, and specification of the species will not in most cases identify with precision either the extent of the assemblage or the area occupied. When one looks at any particular location, plainly one will not find all species at that particular location. It will often be the case that the species in question include many species which are commonplace. Thus there are questions inevitably raised as to whether a group of species at or near a particular location, some or all of which may be commonplace, do or do not form part of the assemblage of species, which assemblage of species includes but is not exhausted by the species at or near this particular area. There will often be cases where there are areas of transition between one ecological community, broadly considered, and another ecological community, where species which are part of each ecological community occur. Precise determination of whether those species in the transitional area are to be regarded as part of one ecological community or of the other, or of neither, will be incapable of precise and definite determination.

234 It is plain therefore that a certain amount of vagueness and uncertainty in the determination of boundaries of ecological communities is an inevitable result of the formulations chosen by the legislature. It must follow, in my opinion, that a certain amount of vagueness and imprecision will not necessarily cause a determination that a named ecological community is an endangered ecological community to be regarded as void or invalid because of uncertainty or lack of definition.

235 When one has regard to these considerations, and to the further discussion by Beazley JA, it is clear to my mind that this particular attack made by the appellant must fail.

236 I appreciate that there is force in the appellant’s submission, based on s.118A of the National Parks & Wildlife Act 1974, that this raises difficulties for people having to decide whether to remove or otherwise damage a plant of a particular species in an area which may or may not be occupied by an endangered ecological community. Section 118A of that Act is in the following terms:

237 Regard should also be had to s.181(2A) of the same Act, which is in the following terms:

238 I accept that these provisions raise difficulties for people considering what to do about plants or animals of particular species in areas that may or may not be occupied by an endangered ecological community. However, these difficulties are necessarily involved in the way the legislation has been framed. It may be possible that hardship will be avoided by consideration of the element of mens rea involved in s.118A offences: there may for example be recognised a defence to the effect that the person in question reasonably believed that the species being dealt with was not part of an endangered ecological community.

239 Finally, on the disqualification issue, in my opinion the appellant’s submissions have no substance whatsoever.

240 The appeal should be dismissed with costs.

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Last Modified: 10/23/2003

Citations

VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297

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CITATION:	VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) [2003] NSWCA 297
HEARING DATE(S):	7 March 2003; 10 March 2003
JUDGMENT DATE:	17 October 2003
JUDGMENT OF:	Spigelman CJ at 1; Beazley JA at 61; Hodgson JA at 214
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	ENVIRONMENTAL LAW - endangered ecological community - listing process in Threatened Species Conservation Act - validity of final determination to list community - distinction between initiating mechanisms - assemblage of species - particular area ADMINISTRATIVE LAW - validity of determinations of Scientific Committee - requirement to advertise reasons for determinations - where published reasons restated statutory formula - sufficiency of reasons - certainty of findings in final determination - non-compliance with statutory provision for nominations - availability of alternative power to support listing - whether different consequences of statute under alternative powers - reasonable apprehension of bias PRACTICE AND PROCEDURE - application to reopen case - discretion to allow reopening - where inconsistent tactical decisions and legal claims by both parties - where new evidence on critical matter in proceedings
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) s 25D Broadcasting and Television Act 1942 (Cth) Broadcasting Services Act 1992 (Cth) s 160 Environmental Planning and Assessment Act 1979 s 100A Foreign Acquisitions and Takeovers Act 1975 (Cth) s 18 National Parks and Wildlife Act 1974 ss 118A, 181 National Parks and Wildlife Conservation Act 1975 (Cth) Remuneration Tribunal Act 1973 (Cth) s 7 Threatened Species Conservation Act 1995 ss 3, 4, 6, 12, 17, 18, 19, 20, 21, 22, 23, 24, 25, 127, 128, 133, 134
CASES CITED:	Abbott v Shire of Heidelberg [1926] VLR 199 Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1989) 88 ALR 287 Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 Australian Television Services Pty Ltd v Marsden [2002] NSWCA 419 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 Brown v Petranker (1991) 22 NSWLR 717 Brown v West (1990) 169 CLR 195 Canwest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509 Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246 Dixon v Esperance Bay Turf Club (Inc) [2002] WASC 110 Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 Harris v Great Barrier Reef Marine Park Authority (1999) 162 ALR 651 Harts Australia Limited v Commissioner of Australian Federal Police (2002) 117 FCR 358 House v The King (1936) 55 CLR 499 Iveagh (Earl) v Minister of Housing and Local Government [1964] 1 QB 395 Johns v Australian Securities Commission (1993) 178 CLR 408 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 Lockwood v The Commonwealth (1953) 90 CLR 177 Mercantile Mutual Life Insurance v Australian Securities Commission (1992) 40 FCR 409 MIMA v Bhardwaj (2002) 209 CLR 597 Minister for Immigration v Yusuf (2001) 75 ALJR 1105 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Moore v The Attorney General (Irish Free State) [1935] AC 484 Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) (1979) 142 CLR 460 Ramos v Minister for Immigration & Multicultural Affairs (1998) 53 ALD 64 Tasker v Fullwood [1978] 1 NSWLR 20 Urban Transport Authority of New South Wales v Nweiser (1991) 28 NSWLR 471
PARTIES :	Appellant: VAW (Kurri Kurri) Pty Ltd Respondent: Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995)
FILE NUMBER(S):	CA 40555/02
COUNSEL:	Appellant: S Rares SC / M Leeming Respondent: B Walker SC / B Preston SC / S Pritchard
SOLICITORS:	Appellant: Blake Dawson Waldron Respondent: Vivienne Karen Ingram (NSW National Parks & Wildlife Service)

LOWER COURTJURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	40110/2001
LOWER COURT JUDICIAL OFFICER :	Cowdroy J