Ross Mining NL v Timbarra Protection Coalition Inc & ORS S26/1999 [1999] HCATrans 145 (14 May 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S26 of 1999

B e t w e e n -

ROSS MINING NL

Applicant

and

TIMBARRA PROTECTION COALITION INC

First Respondent

TENTERFIELD SHIRE COUNCIL

Second Respondent

MINISTER FOR MINERAL RESOURCES

Third Respondent

Application for special leave to appeal

GLEESON CJ

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MAY 1999, AT 11.01 AM

Copyright in the High Court of Australia

MR G.A. FLICK, SC: If your Honours please, I appear for the applicant. (instructed by Blake Dawson Waldron)

MR T.F. ROBERTSON: May it please the Court, I appear for the first respondent. (instructed by Environmental Defender's Office)

GLEESON CJ: There is a certificate from the Deputy Registrar of the Court that she has been informed by the second and third respondents in this matter that they do not wish to be represented at the hearing of the application for special leave to appeal and will submit to any order of the Court save as to costs.

Yes, Dr Flick.

MR FLICK: Your Honours, the submissions that we would wish to advance in support of the application are basically threefold. The first one addresses the question as to the notice of discontinuance having been filed in the Land and Environment Court. Your Honours may be aware that since the application book has been filed a new application has been made and Timbarra Protection has filed a notice of discontinuance in the Land and Environment Court. The question is what is the significance of that. We say it does not deprive this Court of its ability to entertain the application, nor should it. If the application is successful and the appeal is ultimately allowed, the consequence would be that we would be restored to the development consent that the Council originally granted us.

The second matter that we would wish to advance is the fact that the judgment of the Chief Justice with which the other two judges obviously concurred fails to address a matter which was fundamental. His Honour the Chief Justice's reasons obviously address in great detail the law as to what constitutes a jurisdictional fact, the indicators which point one way or the other, for example, whether it is expressed in subjective terms and the like, but our point is this, that what the Chief Justice, with great respect, failed to address was the significance attached to the difference between a designated and a non-designated development. A designated development attaches to it the rights of public participation and the opportunity for objectors to go to the Land and Environment Court in Class 1 proceedings and thereby review all of the facts on their merits.

This application was a non-designated development which does not permit of the same opportunities for objectors to go to the Land and Environment Court and re-canvass the facts in the same degree of detail. The non-designated development is restricted to the judicial review jurisdiction of the Land and Environment Court and, obviously, the ability to review the facts is greatly confined. That, of course, is the practice that the Land and Environment Court has had to date been adopting.

The consequence of this decision is that the fact in issue there, the question as to whether it is likely to affect habitat, becomes a fact which is reviewable on the merits. It is a fact which becomes open to scrutiny by a superior court. If it was a Class 1 application that would be appropriate. In a Class 4 application what the Parliament has said is the appropriate scheme of review - - -

GUMMOW J: That depends on whether it is a jurisdictional fact.

MR FLICK: The submissions may be seen, your Honour, as begging the question, namely, if it is a jurisdictional fact, then that could equally be what Parliament intended, but what we say the Chief Justice, with great respect to him, failed to address was what significance is attached in this statutory scheme to the difference between the Class 1 and a Class 4 applications. It is not addressed, and to the extent that it is addressed it would appear that, with great respect to the learned Chief Justice, he failed to appreciate the difference entirely. For example - and the clearest indication of that it - he places great reliance upon the proposition that there is public consultation. He placed great reliance upon the fact that there is the opportunity for advertisement and the opportunity for the public to contribute. That is true for designated developments but not non-designated.

GUMMOW J: What is the relevant section which contains this jurisdictional conferral? Is it set out in the reasons?

MR FLICK: No, it is not, your Honour. What one has to do, to trace it through, you go to the Environmental Planning and Assessment Act which gives you the difference between the designated and non-designated developments and then you go to the Land and Environment Court Act which tells you what matters can be subject to review. If one goes to - - -

GUMMOW J: The jurisdictional fact will be in the Land and Environment Court, will it?

MR FLICK: If it is to be found at all, it would be found in section 77 of the Environmental Planning and Assessment Act.

GUMMOW J: That is what I thought.

MR FLICK: If your Honour looks at that, that is in Part 4:

A development application may be made only by:

there is (1)(a) and (b), and if your Honours drop down to section 77(3):

A development application shall -

be made, (a), (b), (c), (d), and (d1) is the relevant one.

GUMMOW J: That is right.

MR FLICK: And that, of course, is what a development application should include and, as the Chief Justice pointed out, that has its counterpart in section 90 of the same Act, subsection (1) paragraph (c3).

GUMMOW J: Say that again.

MR FLICK: That consideration is a matter which the consent authority must take into account pursuant to section 90(1)(c3).

GUMMOW J: Yes.

MR FLICK: Now, both of those provisions are set out in the Chief Justice's reasoning.

GUMMOW J: Yes. The first one is at page 84.

MR FLICK: Yes, your Honour. Section 98 of the Environmental Planning and Assessment Act, however, takes the matter one step further. It provides that:

An objector who is dissatisfied with the determination.....may.....appeal to the Court.

If one traces that legislative scheme through, it is the word "objector", which is defined back in section 4, which restricts the right to designated developments. And objector is an objector to a development application in respect of a designated development.

GUMMOW J: Am I right in thinking it was held in the Land and Environment Court that the matter you referred us to in section 77(3)(d1) was a matter in respect of which the court could make mistakes within its jurisdiction?

MR FLICK: The view adopted by the Land and Environment Court, both in this case and previous cases, was that the question as to whether or not it fell within 77(3) was a matter for the consent authority - - -

GLEESON CJ: Just before you go further, when you say the question whether "it" fell within section 77(3), what exactly do you mean by that?

MR FLICK: The question as to whether or not the application was one in respect to which it was likely to significantly affect threatened species.

GLEESON CJ: Thank you.

MR FLICK: Of course your Honour the Chief Justice is aware that that was a matter that the Chief Justice in the Supreme Court attached some significance to. But to pursue that theme and to answer Justice Gummow, the view of the Land and Environment Court was a determination or a decision or a resolution as to whether or not an application was likely to have that effect. It was a matter for the consent authority and that the scope of review open to the Land and Environment Court was the scope of seeing whether that factual determination was reasonably open. It was the Wednesbury reasonableness approach to review of the facts. If it was a decision which was - - -

GUMMOW J: If it is a jurisdictional fact, I do not see what Wednesbury unreasonableness has got to do with it.

MR FLICK: That, of course, is the issue. If the Land and Environment Court's approach is correct, it restricts it to simply a determination as to whether there is any evidence to support it and, if there is some evidence to support that factual conclusion, whether it is one reasonably open to the consent authority. The Chief Justice pursues it beyond that and says one must determine whether it is factually and objectively correct.

GUMMOW J: That is the traditional view of jurisdictional fact.

MR FLICK: That, of course, is the case. But our point, your Honour, is this, that what the Chief Justice did not focus upon, with great respect, was Parliament has said - and your Honour would say not expressly - what is the extent of a superior court's involvement and what is the extent to which a court should look at factual determinations.

GUMMOW J: There is no superior court here, is there?

MR FLICK: The Land and Environment Court is a superior court, that is - - -

GUMMOW J: Superior court of limited jurisdiction, that is the idea, is it?

MR FLICK: Yes, of course, your Honour. But what we draw out of, and it is a matter of implication, the quite express rights conferred to challenge these two different sorts of developments is a legislative intent that where it is non-designated, you are restricted to Class 4 applications and you are restricted to the normal and more confined scope of judicial review. It is only in relation to - - -

GLEESON CJ: You mean jurisdictional facts cannot arise in a Class 4 application?

MR FLICK: They can arise, your Honour, and that is our third short point, and that is that jurisdictional facts - different words have been used to identify the concept. It is a concept which unquestionably can arise when what the court is looking at is defining the parameters within which a discretion is to be later exercised. What the Chief Justice has done here is not to identify a fact as jurisdictional which defines the parameter within which the discretion is later exercised but has projected the court very much into a factual resolution of a criteria centrally relevant to the exercise of the discretion itself. It is one thing for a court to say that an appropriate application was not lodged or that it was not lodged within time. One can give examples of that kind. It is one thing to identify those as jurisdictional, but does it, we put rhetorically, project - - -

GUMMOW J: The principles as to how one determines whether something is a jurisdictional fact are settled, but necessarily imprecise. That must be so.

MR FLICK: We could not disagree.

GUMMOW J: Why does the application of those principles in this State statute necessarily involve us? What could we say that would be new on any point of principle?

MR FLICK: What it would say, your Honour, and the point of importance for this Court is what is the extent to which a court should project itself into the factual merits of a decision where - - -

GUMMOW J: That depends on the way Parliament has drawn its legislation when it creates these jurisdictions.

MR FLICK: And that is why we have to maintain - - -

GUMMOW J: If Parliament uses value laden criteria with factual components in doing so, so be it.

MR FLICK: That is why we have to maintain our second proposition. The third proposition highlights the consequence of it, it highlights the fact that the court is going to be projected into a resolution of criteria centrally relevant to the discretion. The fact that the second proposition is one which says, "Where does the Chief Justice address and resolve the statutory scheme which quite expressly draws this fundamental distinction between the sorts of development applications which can be made?", and such discussion as there is in the Chief Justice's judgment, with great respect, suggests that he was not aware to it and confused it. That is the example that we use of where he says it is important to have public consultation, this is the statutory scheme, but what he overlooks is that that is the statutory scheme not for what he was dealing with, not for the application which was before the court in that case, but that was the statutory scheme in place for designated developments. It had nothing to do with what he was resolving before him.

GUMMOW J: What was before him in the Court of Appeal was the question of appeal of law, would it have been - it would have to be, would it not - as to whether there was error in what had happened in the decision of Justice Talbot in the Environment Court and the way his Honour had approached this question?

MR FLICK: And what his Honour had to resolve was the question as to, not, with great respect, an academic discussion as to what constitutes jurisdictional fact, but what he had address was this particular statutory scheme which has, as its fundamental plank, the difference between designated and non-designated - - -

GUMMOW J: Where do you say is the passage in the primary judge's judgment that got it right or wrong?

MR FLICK: It is set out in the application book, your Honour, and it is at page - - -

GUMMOW J: The particular passage.

MR FLICK: The passage is at pages 80 to 81 where - - -

GUMMOW J: And the Chief Justice disagreed with that.

MR FLICK: Yes, he disagreed. But to answer your Honour, it is a question of statutory construction. The question is did his Honour deal with the different sorts of applications which could be brought or did he ignore that fundamental distinction and construe section 77(3)(d1) in a context divorced from that distinction? The moment he construes it in a way which does not address the different way in which designated and non-designated developments are brought he is not resolving the question of statutory interpretation which is before the court. If he gets that wrong then, of course, not only is there an error, but then what is of general importance is the extent to which courts should employ the doctrine of jurisdictional fact to project a court beyond the identification of the parameters within which a discretion is to be exercised and to project the court into the exercise of discretion itself.

GUMMOW J: The effect of the Court of Appeal's decision was that it had to go back because this material had been excluded when it should have been admitted, that is the effect of it, is it not, and there should be a new trial?

MR FLICK: Yes.

GUMMOW J: Now, what is the effect on all of that with this discontinuance?

MR FLICK: If the application for special leave is refused, there is the notice of discontinuance filed before the Land and Environment Court. We should say that under the rules of the Land and Environment Court there is no requirement for leave to discontinue and no requirement for consent and the rules have the traditional consequences as to costs which follow when a discontinuance is filed. We have filed a motion seeking to set aside the notice of discontinuance.

GLEESON CJ: What is your client's interest in preventing the discontinuance?

MR FLICK: Your Honour, if we are successful here and the decision of the Court of Appeal is set aside and the decision of Justice Talbot reinstated, then we have a development consent which we can act upon. That is of great utility.

GLEESON CJ: I follow.

MR FLICK: Your Honours, unless I can be of further assistance, they are the three points that we wish to advance.

GLEESON CJ: Yes, thank you. Mr Robertson.

MR ROBERTSON: May it please the Court, can I deal with the last point first. The effect of discontinuance would, of course, be to affirm the development consent because it would leave it untouched. Hence, what interests my learned friend's client would have in seeking to set aside discontinuance is beyond us.

GLEESON CJ: Is it not touched by the order of the Court of Appeal? What was the effect of the order of the Court of Appeal?

MR ROBERTSON: I see. The order of the Court of Appeal does not invalidate the development consent. The order of the Court of Appeal - I am sorry, the effect of the order in the Court of Appeal is simply remitter. The development consent has been granted in relation to which the proceedings before Justice Talbot were commenced. That consent has not been set aside. The effect of discontinuing those proceedings is to leave the position unchanged from the grant of the consent. So the order of the Court of Appeal does not set aside the consent. The effect of discontinuance is simply to leave matters as they lay before the commencement of the proceedings.

Your Honours, the second matter which my friend first addressed concerned the point about jurisdiction. We do not, of course, submit that this Court lacks jurisdiction to hear and determine any appeal, if leave was granted.

GUMMOW J: I do not think he was so bold as to say that.

MR ROBERTSON: The other points really devolve upon this issue: whether anything of public importance to the law in Australia could be achieved by granting special leave.

GLEESON CJ: What do you say about his argument on the merits, that is to say that the reasoning in the Court of Appeal overlooked the distinction between designated and non-designated developments and that error affected the view that was taken on the central issue before the Court of Appeal?

MR ROBERTSON: Your Honour, perhaps it overlooked it because no submission was put to it concerning that issue. It is, with respect, a false issue. It does not affect, at all, the construction of section 77 that there is an administrative appeals system from Council decisions to grant or withhold development consent.

GLEESON CJ: Was the distinction between designated and non-designated developments one that was relied on on the applicant's side in the Court of Appeal?

MR ROBERTSON: Only to the extent that there was an alternative argument put by us, having nothing to do with the jurisdictional fact argument, that the development was itself designated. It is a designated development but because it was an extension to an existing mine, Council exercised a discretion which it had under the regulations to deem it to be non-designated.

GLEESON CJ: But what I wanted to ask you was, was that relied on by your opponents in the Court of Appeal?

MR ROBERTSON: Not in relation to the jurisdictional fact issue, your Honour. It was common ground that this - - -

GUMMOW J: What other issue was there that it went to?

MR ROBERTSON: The only matter that could possibly arise, your Honour - - -

GUMMOW J: In the Court of Appeal, I mean. What other issue in the Court of Appeal could arise?

MR ROBERTSON: Jurisdictional fact. That was the substance of the argument in the Court of Appeal, apart from a quite separate matter which is not before this Court. The jurisdictional fact argument was determined by his Honour's - - -

GUMMOW J: What was the separate matter all about? Nothing is before us yet, there is no grant of leave.

MR ROBERTSON: The separate matter was simply that the development itself was designated and Council had improperly exercised its power to deem it to be non-designated. That was all. Other than that, your Honours, the Chief Justice applied a perfectly conventional approach to determining whether this is a jurisdictional fact or not and the only error which is conceded by us in his Honour's judgment is a misdescription of a small part of the statutory framework relating to whether the development was advertised development. That had no bearing upon his Honour's construction of the statute. It was merely referred to his Honour in passing to confirm a decision he had already reached concerning the meaning of the terms in section 77.

Apart from that, my learned friend's argument is put in this sense. He says, of course there is a merits appeal at the end of the decision-making process. That can somehow or other convert a statutory formula that must be satisfied in order to open up the discretionary power from a jurisdictional - what on its face is an objective formula to a subjective one. We simply say that is just incorrect. There is nothing - and in so far as the argument depends upon any jurisdictional element, that is the jurisdiction of the Land and Environment Court, there is really nothing in the Land and Environment Court Act which supports the construction that my learned friend seeks to give to the matter. Class 4, in which these proceedings are brought, is the judicial review jurisdiction of the court. Class 1 is its administrative appeals capacity in which it is acting effectively as an administrative decision maker and powers of the court may be exercised by assessors who, in most cases, are not lawyers. The two are entirely different. What the legislature has done, taking advantage of the absence of any strict rule concerning separation of powers in New South Wales, is to bring together in the one body the powers exercised at a federal level by the Administrative Appeals Tribunal on the one hand and the Federal Court on the other.

The mere fact that there is an AAT federally does not mean that one converts jurisdictional facts and federal laws which are capable of review by the Federal Court into matters for consideration by the decision maker. I think that is the answer to my learned friend's submission. Unless there is anything else - - -

GLEESON CJ: Thank you, Mr Robertson. Yes, Dr Flick.

MR FLICK: Your Honours, two short points. One is that my instructions are - and I think it is apparent from the reasoning of the Chief Justice - that the argument that I put to your Honours was put before the Court of Appeal below, so I am in disagreement with Mr Robertson on that.

The second point is the effect of the notice of discontinuance. If one traces it through, you have the relevant consent, you have the decision of Justice Talbot. Justice Talbot's decision would act as a decision in rem which gives us the right that we want. That decision has been set aside. It has been set aside by the decision of the Court of Appeal and so long as the decision of the Court of Appeal remains intact, we do not have the right that we seek.

They are the submission in reply, your Honours.

GLEESON CJ: Thank you.

This case turns upon the application of well-settled principles to the construction of the State statute in question and does not, in the view of the Court, raise an issue of a kind that warrants the grant of special leave to appeal. The application is dismissed.

Do you resist costs?

MR FLICK: No, your Honour.

GLEESON CJ: The applicant must pay the respondent's costs of the application.

We will adjourn to reconstitute.

AT 11.27 AM THE MATTER WAS CONCLUDED