Weston Aluminium Pty Ltd v Alcoa Australia Rolled Products Pty Limited [2007] HCATrans 145 (24 April 2007)

Last Updated: 2 May 2007

[2007] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S372 of 2006

B e t w e e n -

WESTON ALUMINIUM PTY LIMITED

Applicant

and

ALCOA AUSTRALIA ROLLED PRODUCTS PTY LIMITED

Respondent

Office of the Registry
Sydney No S373 of 2006

B e t w e e n -

WESTON ALUMINIUM PTY LIMITED

Applicant

and

ENVIRONMENT PROTECTION AUTHORITY

First Respondent

ALCOA AUSTRALIA ROLLED PRODUCTS PTY LIMITED

Second Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 24 APRIL 2007, AT 9.55 AM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC: May it please the Court, in both those cases I appear with my learned friend, MR P.C. TOMASETTI, for the applicant. (instructed by Kanjian & Company)

MR R.J. ELLICOTT, QC: Your Honours, I appear with MS S.A. DUGGAN for the respondent in the first matter and for the second respondent in the second matter. (instructed by Holding Redlich)

GLEESON CJ: I understand it is common ground between counsel that the outcome of the second matter is going to depend on the first?

MR ELLICOTT: That is right, it is.

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the premise for the second matter is the point in the first, the question whether a consent or, on the respondent’s preferred and so far successful view of the matter, a combination of consents, permits a certain substance, an aluminium oxide that is called “dross” in the papers, to be sourced from outside the composite site in Yennora in New South Wales, it happens from Point Henry at the moment, in order to be processed in what is called a “rotary furnace”.

GLEESON CJ: Mr Walker, do we have the two consents?

MR WALKER: Regrettably, your Honours do not. May I take you to the closest to the terms of the consents. They are, how shall I say, very savagely filleted at page 4 of the application book, paragraph 11. Justice Lloyd extracts what we say are the critical parts of the 1980, that is 80/40 consent. That is the consent for what we describe as the can reclamation plant which happens to have as one of its components the rotary furnace. Your Honours will see at about line 49 that the can reclamation plant consists of, “1 bag house, 1 rotary furnace, can reclamation and storage areas together with a can buy-back centre”.

GLEESON CJ: Is it part of your argument that it ceases to answer the description of a can reclamation plant if they start putting into it dross that comes other from the cans that have been reclaimed?

MR WALKER: Quite so. The can reclamation is a process carried out by plant and processes which include critically a rotary furnace. It cannot be done without the rotary furnace. That is for the purpose of can reclamation plant, hence the description in ordinary English that the plant is a can reclamation plant. The context of the rest of the facility and, for that matter, the process, can be seen by the fact that you buy back the cans, that is, receive them from literally the street and that you then do whatever sorting and preparation is necessary before they with their decorative coatings go into the rotary furnace. They are not pure aluminium. They produce in that exercise the aluminium oxide and other impurities, if I can call them that, altogether being dross. Dross can go back to be reprocessed in the rotary furnace.

GLEESON CJ: What was the 1981 consent? Where can we see that?

MR WALKER: One starts at page 6. The critical part appears on page 7 in paragraph 23:

THE COUNCIL . . . GRANTS CONSENT for an aluminium remelting facility generally in accordance with plans submitted to Council” –

Then there are conditions. Paragraph 24 is the one your Honours will have seen referred to in the written submissions because that is condition 19 which in the way of these documents then refers off to items 4.2 and 4.3 of the EIS which went in with the application.

When one comes to those, which you will find on page 9 relevantly, paragraph 29, your Honours will see under the heading “Dross handling”, that is dross that is produced in the aluminium remelt facility, not dross produced in the rotary furnace, that dross handling requirement of the 1981 consent refers to it being charged into the rotary furnace. Your Honours will see that at lines 10 and 11. That is the physical and process means by which these two consents for different parts of an overall site can be seen to be addressing what industrially or socially is clearly an integrated enterprise.

Now, the point which was successful before Justice Lloyd and failed in the Court of Appeal was quite simply that the consent being the statutory permission so as to permit what would otherwise be prohibited by reason of the zoning regime for the can reclamation plant was one which his Honour held required the so-called feedstock, what goes into the rotary furnace, to be restricted to the cans and to the product of the rotary furnace itself, that is, the dross going around and around in what might be called an infernal circle.

The product of the rotary furnace which is not dross is then, of course, ready for use in a remelt facility which was the next year consented to. His Honour noted and we accept that the remelt facility is not restricted in its feedstock to what is produced from the can reclamation plant and may take aluminium scrap and, indeed, pure ingot from, for practical purposes, anywhere else. But, of course, the remelt facility is not one which itself processes dross. Dross is not feedstock into the remelt facility. The processing of dross is what produces the kind of pollution – it is a dangerous substance – that is the activity that produces the kind of pollution for which, in the second proceedings, a licence was required.

So there is social, physical and legal significance in the difference between the feedstock into the rotary furnace and the feedstock into the remelt facility and it is the difference that has to do ultimately with poisonous gas and poisonous substances and the handling of poisonous materials including perhaps long supply lines.

GLEESON CJ: How did they get past stage 1? Did they need some further consent?

MR WALKER: Stage 1 is a label rather than a legal description. By inference, the remelt facility is another stage of what I am calling the “integrated enterprise”. Justice Basten, who writes the judgment with which the other two judges in the Court of Appeal agreed, said that this made it a one overall development. That, in our submission, in the simple circumstances that I have explained, is two consents for two different parts of land, different processes, albeit for an integrated enterprise. That is an unknown, completely novel, legal concept. A development which includes use is the subject of an application and is the subject of consent subject to conditions if conditions are imposed.

The land in question may not be used for any other use if use is controlled by prohibition and consent is not given for any other purpose so as to lift conditionally and pro tanto that prohibition. One overall development does not abolish the distinction between what is applied for, what is then assessed by statutory process, including a degree of public participation, and what is then subject to consent. Nowadays consents together with their conditions impose a form of public law enforceable at the suit of anyone by injunctive relief and giving rise to possible criminal liability in certain cases.

GLEESON CJ: Including public-spirited competitors.

MR WALKER: Including public-spirited competitors, yes, a familiar replacement nowadays, your Honours, of the common informer process that was necessary before modern police forces. Your Honours, it is in those circumstances that the approach of the Court of Appeal cannot simply be seen as a particularly startling outcome of interpreting the words “can reclamation plant” and “can buy back” and “can storage” as contemplating the reclamation of anything other than cans. That after all is the way in which his Honour Justice Basten put it at page 36 of the application book in paragraph 43 in a passage which, with great respect, we submit is topsy-turvy the way in which such important instruments ought to be applied and understood. At line 51, “However, that” – namely, the implied limitation so-called of a can reclamation plant to the recycling of cans:

that would involve giving ordinary words used to provide a brief description of a plant a precise and restrictive connotation equivalent to the imposition of a condition that the facility be used for processing used aluminium cans and no other form of aluminium product.

With great respect, there is an element somewhat of travesty of our argument in that description. There is no implied limit. There is an express description of what this plant reclaims; it is cans. Nowhere is there a suggestion that textually either from within the instrument itself or from legitimate recourse to incorporated documents that “cans” are to be understood as a generic expression which will include bits of speedboats, off-cuts from aluminium construction and the like.

GUMMOW J: What do you say about Mr Ellicott’s submission at page 149, paragraph 13?

MR WALKER: That refers to consent 81 and, as I said in opening, your Honour, there is no limitation imposed by description of the remelt facility on where it may derive its feedstock. There is an out-and-out error at line 21 where our learned friends refer to “feedstock (including Dross)”. There is no evidence whatever and no finding which could possibly support the notion that dross is ever feedstock into a remelt facility. It is only ever feedstock into a rotary furnace.

GUMMOW J: I was wondering, is there any evidence about this, about trade usage in this respect?

MR WALKER: There is a finding in the Court of Appeal at page 23, paragraph 7, the last sentence, line 20, “Dross is also processed first through the rotary furnace.” That is why the submission that Justice Gummow has drawn to attention on page 149 misfires. Dross is no part of the feedstock into the remelt facility. Dross is produced by anterior processes carried out at different places – it happens to be next door in this case at this time – in order to ready scrap and other source for putting into the remelt facility. If one likes, in lay terms, to purify sufficiently for it to be in the remelt facility.

GLEESON CJ: Is it your argument that that expression or description “can reclamation plant” applies to the entire facility, the entire integrated facility?

MR WALKER: Absolutely not, no. This is a case about the clarity and integrity of a system by which land use is regulated with the following dimensions: first of all, place; second, kind of activity; third, conditions, basically precautions which must accompany the conduct of that activity. In order to produce that kind of land use regulation which is universal in this country and extends beyond this country, in order to regulate that in this State on a model which, as we have shown, has been echoed around the country, there are statutory provisions by which applications must be made disclosing sufficient information about the proposed activity on the specified land, which must be specified, not expandable.

Second, there will be assessment including, with respect, to matters which might otherwise be the subject of private litigation and nuisance such as poison. Third, there will be an outcome subject not only to some public participation as it is produced, but subject thereafter to what I will call public monitoring, not only subject to government control or government acquiescence.

For all those reasons, in our submission, there is paramount importance, however elementary the proposition may be, in correcting the Court of Appeal’s egregious error, as we submit it to be, of construing the 1980 consent as having been altered in its legal incidence, particularly by the extent of the permission for the generation of the poison, by reference to the 1981 consent which was for different land and a different process.

GLEESON CJ: I am not suggesting it answers any question in this case, but you accept that the aluminium remelting facility is not limited to taking feedstock from the can replacement?

MR WALKER: Absolutely not. As I said in opening, for relevant purposes your Honours can proceed on the basis that subject only to transport regulation which is separately attended to, pollution regulation which is separately attended to, the remelt facility is not limited in the sources which market and other conditions from time to time may suggest for its feedstock.

GUMMOW J: Does that mean you do not quarrel with what Mr Ellicott says in his paragraph 14 on page 150 that you confess and avoid?

MR WALKER: Yes, that is exactly correct, yes. The 1981 consent operates according to its tenor, which we have repeatedly said here and below did not limit its feedstock. The link physically and matter of process is that a condition of the remelt facility was that its dross go back to the rotary furnace. I stress, it is a simple factual error to suggest that dross goes into the remelt facility. Dross has to be dealt with by the rotary furnace. So that if there is a link, as there plainly is, by condition 19 to which I have drawn attention in the 1981 remelt facility consent, if there is a link between the two consents it emphasises the importance - - -

GUMMOW J: Can you just refer me to condition 19 again?

MR WALKER: Condition 19 your Honour will find relevantly on page 9.

GUMMOW J: Yes, thank you.

MR WALKER: Condition 19, that is contained in 31 but it picks up the references which include paragraph 29, “Dross handling”. That, of course, if anything, adds powerfully to the proposition that these are consents – and we concentrate on the 1980 one, that is the land use we say should have its legal controls vindicated by reversing the Court of Appeal’s decision – if anything, the 1981 remelt facility requirement that its dross go back to the rotary furnace in the can reclamation plant stresses that dross from elsewhere is not permitted to be put into the can reclamation facility by any planning instrument, not by the Act, not by what I will call the zoning instrument and not by a consent such as is called for by the combination of the Act and the zoning instrument which means, in our submission, that the Court of Appeal has found, by the process of reasoning which calls it an overall development, as it were, a new creature which is an interstitial operation of two separate consents for two separate parts of land, neither of which in terms permits that which is said to be by the Court of Appeal’s reasoning the outcome of a reading of the two consents.

GUMMOW J: Do you quarrel with this phrase “part of a single overall development”?

MR WALKER: Absolutely. Your Honours will find that that approach culminates in the passage headed “Construction of consent” which commences on application book page 36. Towards the foot of page 37 his Honour correctly notes in paragraph 44 throughout that the remelt facility consent does not limit its feedstock. Quite so. At the foot of that page he says:

The inference is that the Council did not intend to impose a limitation, by way of condition or by its description of the respective developments –

there switched two instead of one –

on the source of feedstock, either for the melting furnaces or for the rotary furnace.

With respect, that is a form of reasoning that departs entirely from declaratory and publicity of a published text, namely, a consent to something which is not justified by either of the consents read separately and therefore could not be justified by reading them together.

Your Honours will see that the slide is to move from the melting furnaces about which the preceding comments are, with respect, correct to the rotary furnace. The rotary furnace has never been the subject of an application for environmental assessment of or, we submit, consent given to the processing in it of dross from anything other than the cans which are being reclaimed or by the 1981 consent, the dross produced in the neighbouring remelt facility.

It is for those reasons, in our submission, that there is a most important principle which has been entirely departed from in the Court of Appeal ironically bearing in mind the correct self-direction by his Honour as to how one reads these documents. He has produced in that passage I have last drawn to attention a new form of implication which, in our submission, is to be deprecated and avoided and requires correction in this Court. May it please the Court.

GLEESON CJ: Thank you, Mr Walker. Yes, Mr Ellicott.

MR ELLICOTT: Your Honours, there are three grounds upon which we submit you should reject the application. First of all, this case is no more than the application to a special set of facts of a principle which is well-established, it is not under challenge. Indeed, it was recognised recently by this Court in Concrete v Parramatta Design, a decision of Justice Else-Mitchell in Ryde Homes was referred to because the consents have always been said to be in the nature of a document of title and therefore you have to construe what it says. That is exactly what happened here.

The court construed the words “an aluminium remelt facility” in accordance with the plans and specifications and in doing so they came to the result that it did not limit not only the source of feedstock in the nature of aluminium scrap or beverage cans, did not limit where the ingots could come from that go into the remelt plant and did not limit the source of dross and that is because dross was feedstock for a rotary furnace and that rotary furnace was part of the aluminium remelt facility which was the subject of the development consent.

GLEESON CJ: The 81 consent?

MR ELLICOTT: The 81/254 consent.

GLEESON CJ: So your argument is that the 81 consent covered the certain parcels of land referred to in paragraph 11?

MR ELLICOTT: Yes, your Honour, it did and that is obvious if one looks at the plans. I would like to hand up to your Honours because my friend has given an interpretation of events which do not, when looking at the original documents – I would like to hand up a copy of the consent plus those plans and notice has been given in relation to that.

GLEESON CJ: Is this the 81 or the 80 consent or both?

MR ELLICOTT: The 81, your Honour.

GLEESON CJ: These were in evidence, were they?

MR ELLICOTT: They were. Your Honour, it is important to look at the plans because, as your Honours will note from the consent, it was a consent for an aluminium melting facility generally in accordance with the plans submitted. These were the plans submitted and as they were before the court below. They are somewhat larger because you could not read what was in the appeal book below as to the descriptions. The important one to look at is the one that shows the location of various items of plant.

Your Honours would see two streets, Norrie Street to the east and Loftus Road to the north, and what was happening was that the plant was integrated into one area on the north of this site. You can see areas for existing rotary furnace area, existing can reclamation area, buy-back for cans, dross treatment and then over to the left there is a reference to remelt plant which is just to the right of a hatched area described as existing warehouse.

Is it clear that the whole of that was presented as the subject of the remelt facility in respect of which approval was being sought. That becomes even clearer when one looks at this other plan. I apologise for this intrusion into the facts. You have to imagine that you are standing on the other side of Norrie Street looking south. Your Honours will see existing north elevation and starting on the left at the top that is the buy-back centre, the warehouse, slag house, then it says another bag house and rotary furnace, et cetera. That is the existing area and then there is a proposed extension down the bottom.

So if you imagine the part at the bottom is added to the part at the top – your Honour sees the words “existing” and “proposed” on the bottom section there, if you imagine that what is seen at the bottom is added to what is at the top on the right, then that is the whole of that area and that is the proposed remelt facility.

Our case is, and we say this is what the Court of Appeal was doing, in paragraph 44 of the judgment on page 37, in accordance with principle, it was well accepted, not challenged here, not the subject of debate in the appeal that is proposed, applied the principle and we say that it was correct. That is another ground, of course, for saying that your Honours should refuse special leave.

GLEESON CJ: Did the Court of Appeal decide that the question was a question of construction of the 1980 consent or a question of the construction of the 1981 consent?

MR ELLICOTT: We say it was a question of construction of the 1981 consent. If they did not do that, they would have erred in principle because each consent, because it is a document in the nature of a document title, it has to be construed and it is up to the council according to principle. If it wants to qualify a consent, then it needs to make that clear and express by necessary - - -

GLEESON CJ: The first sentence of paragraph 44 had - - -

MR ELLICOTT: Yes, “treating the development as a whole”.

GLEESON CJ: Yes, “it is necessary to explain why the consent for the rotary furnace”, that is the 1980 consent, is it not?

MR ELLICOTT: That is:

why the consent for the rotary furnace should be construed differently from that for the melting furnaces.

Then it goes on, the consent, that is the one in front of your Honours refers to that:

No condition in that consent relates to the feedstock for the melting furnaces; nor do the plans contain such detail.

The melting furnaces are the rotary furnaces -

Apart from the output of the rotary furnace, the aluminium feedstock for the melting furnaces might come from sources outside the Yennora plant.

The melting furnaces in that description is a reference to the melting plant itself. In other words, pure aluminium comes from the ingots, say, and they go straight into the melting furnaces. It is melted in a way in which it can be rolled out, et cetera, and produced in a product and it has very few impurities in it. On the other hand, the rotary furnace is where dirty aluminium off-cuts or whatever they may be might come into the plant or dirty cans that have paint and other material on them which has to be removed go into the rotary furnace.

The rotary furnace is a special type of plant that is able to get rid of and does so in the form – of course, it can end up with dross itself, but also dross from the melting furnace, which might be 80 per cent or 90 per cent aluminium, also goes into the rotary furnace. So it is a cleansing process in order to get aluminium that can then go into the melting furnace itself and be put into the final product. Going on there:

Apart from the output of the rotary furnace, the aluminium feedstock for the melting furnaces might come from sources outside the Yennora plant. Weston Aluminium does not deny that construction. One might infer as much from the large area of “covered scrap storage” which forms part of the plan. If, as Weston Aluminium submits, reference to the EIS for that application is permissible and appropriate, one learns that the input –

his Honour then goes on to deal with that and he ends by saying:

The inference is that the Council did not intend to impose a limitation, by way of condition or by its description of the respective developments, on the source of feedstock, either for the melting furnaces or for the rotary furnace.

We would say, in fact, that his Honour did not need to go to that extent.

GLEESON CJ: When he says “the Council did not intend”, did not intend when?

MR ELLICOTT: Did not intend when it gave the consent 81/254 which is the relevant consent. It did not intend, not only that, there is nothing – and my friend concedes this, as I understand it – there is nothing in it that limits the feedstock, that is, in the nature of dross, to that which comes from within the plant itself.

GLEESON CJ: Mr Ellicott, the 1980 consent refers to the erection of a stage 1. In fact, it says, “the erection of a stage 1 of a can reclamation plant”. What was stage 2?

MR ELLICOTT: Stage 2 came up later. I think in 1985 stage 2 came up. That hearkened back, of course, to the one in – it was a development consent of 3 January 1985 and it authorised the erection of stage 2 and it was granted, of course, subject to certain conditions, but it was no more, we say, than a re-endorsement of the proposition that there was no restriction on the source of the dross for the purposes of the rotary furnace.

GLEESON CJ: We are not concerned, are we, with the problem that might have arisen if in late 1980 they had started using imported dross because, according to your argument, whatever might have been the position then, and it might have turned on whether you could describe this as a can reclamation plant, in consequence of the 1981 consent, there was a permission to use, amongst other things, stage 1 of the can reclamation plant and the rotary furnace in it to deal with imported dross?

MR ELLICOTT: That is right. My friend’s argument seems to suggest that once you have a limitation on what can be done with a particular plant it cannot be incorporated in or overtaken by another development application. Well, of course, that could not be correct and that is precisely, we say, what has happened here because what came into the development consent by name and description were the words “an aluminium remelt facility” and there is no doubt that there is no particular requirement in relation to dross in running an aluminium remelt facility that it come from internal sources and not from external sources. It can come, as in this case, as is alleged and is true, from Point Henry in Victoria that that source is not offensive to, indeed, is quite part of an aluminium remelt facility.

My friend has referred to issues about the environment. If dross is brought in externally, there is no problem in terms of the environment that will not be dealt with. That is to say, there are Acts or regulations that deal with dangerous goods that might be transported interstate. There are Acts that deal with pollution from plants such as rotary furnaces. There are occupational health and safety Acts that deal with all those things. This is only a development consent and it all is enveloped by a massive environmental legislation that is designed to protect everything.

My friend rather puts it the other way, but one would think that the development consent was going to answer all those issues. To some extent this development consent does and if one goes through the conditions, you will find numbers of matters that are dealt with. For instance: 4, compliance with the Clean Air Act; 5, reuse and trade waste, refuse and trade waste, industrial waste water, unreasonable noise, roof and surface water and so on. Of course, one gets down to the disposal of liquid effluents and solid waste in 19 and that just picks up those items 4.2 and 4.3 for that purpose. There are notes (a) and (b) “These premises are scheduled under the provisions of the Clean Air Act and the approvals required”, et cetera. In other words, the Council knows what it is doing. It knows that the matters of the environment that need to be dealt with.

In our submission, this is just another case where, on its own facts, well-established principles that are not under challenge about the interpretation of development consents are dealt with. The Court of Appeal we say was correct. If it is not correct, it was open to it to come to that decision and for that reason this Court should not engage itself in that activity.

Another reason is that when the matter before Mr Justice Lloyd was dealt with my client took out a further application to obtain a development consent and that matter went before the relevant council. The council delayed. What happened then was that it was deemed to have refused consent under the legislation and the matter is now before the Land and Environment Court and, as we understand it, the council does not oppose it. It has got to the stage where the matter will – of course, my friend’s clients oppose it - come before the Land and Environment Court in June or July, perhaps August of this year. It is almost ready for hearing.

Now, if my friend succeeds in an appeal, if your Honours granted leave, the fact is that that would not give him the remedy that he is hoping for because there is still this other proceeding. I mention that because it could turn out that if your Honours granted special leave it would turn out
to be a process that is unnecessary in all the circumstances. This, we would submit, is clearly not a case for special leave. It does not fall within any principle relating to the administration of justice or, alternatively, involving some special principle of law that needs to be clarified. If the Court pleases.

GLEESON CJ: Thank you, Mr Ellicott. Yes, Mr Walker.

MR WALKER: Your Honours, the argument concerning, as it were, an overlaid 1981 consent for the same piece of land covered by the 1980 consent was raised at first instance and rejected. If it was raised in the Court of Appeal, it received no attention from that court. It seeks to be revived and now that we have heard how my learned friend seeks to use the plan, may we make it crystal clear that there is material which was before the Court of Appeal that factually denies the proposition. At page 11 of the application book, however, you will find that argument considered at first instance. In paragraph 38, line 20, a submission includes the respondent saying:

that the consent for the remelt facility, that is No. 81/254, was a consent for a plant which incorporated and included the existing can reclamation plant and may be seen as encompassing that operation as well.

Paragraph 40, Justice Lloyd was unable to agree – “According to the plans” – the judge read the plans, all of them – “that application relates to a discrete portion of lot 23”. We can tell your Honours that before the Court of Appeal, 136 of their blue appeal book, that site for the remelt facility was described as approximately 24,000 square metres. It is part of lot 23 which includes the can reclamation plant which itself is 4.296 hectares; very much greater than that which was covered by the site description for the new remelt facility.

Justice Lloyd went on to say that “that application relates to a discrete portion of lot 23”, a finding which is not disturbed in the Court of Appeal by one syllable. He said that it is, “the unoccupied area adjacent to the existing can reclamation facility”, words of factual finding incapable of supporting the overlying theory now heard for the first time from the Bar table supported by plans today. The two applications are separate and discrete but not entirely unrelated and then the relation is, as I put in my submissions in-chief, namely, through the condition 19 requirement for dross to go back to the rotary furnace in the can reclamation plant.

Your Honours, it is for those reasons that the facts in this case are in fact extremely straightforward, provide an excellent vehicle to test whether or not it is correct that a 1980 consent for a discrete portion of the site for something called the can reclamation plant is to be read according to its tenor or whether by being put together with a consent that contains no limitation on feedstock from aluminium remelt facility suddenly feedstock for the rotary furnace being dross from elsewhere is permitted under the 1980 consent. That remains untouched by the submissions my learned friend put. In any event, those submissions your Honours will have noticed from time to time continue the fallacy that dross was feedstock for the aluminium remelt facility. It was not, it is not.

GUMMOW J: What do you say about this point that this saga is not yet finished?

MR WALKER: Your Honours, it is true that the saga is not finished, but it will not finish so long as aluminium remelt facilities require to be improved from time to time. In other words, there will undoubtedly be into an indefinite future while ever that industrial process is considered appropriate at all, there will be applications from time to time for new consents, modifications and the like. That, in our submission, does not alter the fact that the current law in New South Wales regulates the use of this land in a particular way and the Court of Appeal has, in our submission, taken a serious step to subverting the clarity of that regime by the process of reading that they have essayed in this case.

Of course my learned friend is correct. If there were a consent in 1981 to an activity on the land covered by the 1980 consent, then it would be a consent to which resort can be had to invade what would otherwise be prohibition. Of course that is correct. It is factually, utterly incorrect, as I have sought to demonstrate. There is a finding against them at trial on that, no reversal of that finding in the Court of Appeal and certainly none in paragraph 44 to which my learned friend went.

GLEESON CJ: Could I just ask you in relation to the 1980 consent, if the question is whether – leaving aside the effect of what happened in 1981 – the putting of imported dross into the rotary furnace deprived the plant, or stage 1, of the character of a can reclamation facility, might that not depend on questions of fact or degree about the amount of dross that they were using?

MR WALKER: No, not at all.

GLEESON CJ: Why is it inconsistent with it being a can reclamation facility that some of what goes into the rotary furnace is imported dross?

MR WALKER: Because dross is a by-product of reclaiming cans and must itself then be part of can reclamation. But that is the dross that comes
in quantity and provenance from the cans themselves, thus it has not been transported as dross. It comes in as painted cans.

GLEESON CJ: But if you have a rotary furnace as part of your existing can reclamation facility and you have some dross that you want to deal with, what stops you, according to your argument, putting that dross from outside into that rotary furnace if it is only part of a can reclamation facility?

MR WALKER: Yes, because that would not be can reclamation, that would be the processing of dross which, of course, could come from anywhere and from whatever process. The dross generation is controlled by the - - -

GUMMOW J: Does the dross necessarily come from the can reclamation?

MR WALKER: Yes. A necessary part of the physical and chemical process is the production of dross by reason of the fact that cans are, of course, not pure aluminium. If nothing else, they have paint on them. So it is a necessary part of it. Dross is also produced in the remelt facility which is why condition 19 of the 1981 consent had to deal with it as well and your Honours saw the care with which it had to be dealt with. It is after all a poison. It is not just handling, it is controlled by other transport regulations. It is, as generated, a poison. It is a poison that goes into the atmosphere, part of it. It does not all go back into a furnace.

So for those reasons, in our submission, the answer to the Chief Justice’s question is quite simply, can reclamation plant means that. It is for the reclamation of cans which carries with it inexorably the production of dross and thus requires the dross to be kept on site and to constantly go round and round and round and round. It does not involve by definition, by description and thus by regulation after all which is achieved by text, the introduction of dross or ingots from anywhere else.

GLEESON CJ: Thank you, Mr Walker. We will adjourn for a short time to consider the course we will take in this matter.

AT 10.41 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.43 AM:

GLEESON CJ: In the matter of Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited there will be a grant of special leave to appeal. What does that mean in relation to the second matter?

MR WALKER: Your Honours, we would urge that it ought also be the subject here and now of the special leave, although an alternative is to stand the question of its special leave over to the hearing of the appeal in the first case.

GLEESON CJ: Then we would refer that application for special leave to appeal into the court that is dealing with the other matter.

MR WALKER: Yes, it would be necessary that that be with a statement to the effect that the argument should be prepared as on appeal and no doubt it will be for the Court to regulate the manner in which argument is presented. For our part, as your Honours will have seen, the pollution licence case simply follows. I am not sure that is simply so for my learned friend, which is why our primary preference is that special leave be granted now so that the whole issues may be debated at once.

GLEESON CJ: What do you say about that second matter, Mr Ellicott?

MR ELLICOTT: Your Honour, the matter we say should be referred into the court and dealt with.

GLEESON CJ: Yes, we will do that.

MR ELLICOTT: May it please your Honour.

GLEESON CJ: In the matter of Weston Aluminium Pty Limited v Environment Protection Authority and Anor the application for special leave to appeal will be listed for hearing at the same time as the appeal in the matter of Weston Aluminium Pty Limited v Alcoa and the parties understand that they will be ready to present argument on that application as on an appeal if that becomes necessary.

AT 10.45 AM THE MATTER WAS CONCLUDED