Save Beeliar Wetlands (Inc) v The Hon Albert Jacob MLA & Ors [2016] HCATrans 313 (16 December 2016)

Last Updated: 20 December 2016

[2016] HCATrans 313

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P38 of 2016

B e t w e e n -

SAVE BEELIAR WETLANDS (INC)

Applicant

and

THE HON ALBERT JACOB MLA

First Respondent

ENVIRONMENTAL PROTECTION AUTHORITY

Second Respondent

THE COMMISSIONER FOR MAIN ROADS

Third Respondent

CAROLE DE BARRE

Fourth Respondent

Application for special leave to appeal

GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 16 DECEMBER 2016, AT 11.56 AM

Copyright in the High Court of Australia

____________________

MR M.D. HOWARD, SC: May it please the Court, with my learned friend MR H.H. JACKSON, I appear for the applicant. (instructed by Lavan)

MR C.S. BYDDER: May it please the Court, I appear for the first and second respondents. (instructed by State Solicitor (WA))

GAGELER J: Thank you. Mr Howard.

MR HOWARD: Your Honours, may I start with ground 2 of the application, because the applicant will have to succeed on that in order to lay the factual foundation or the ground it seeks to agitate in ground 1. Can I take your Honours to the appeal book, at page 239 in the judgment of the Chief Justice. Your Honours will see at about line 20, paragraph 201, the Chief Justice makes a finding that:

the EPA did not take into account the policy enunciated in [each of those documents] in its assessment –

and, further, that the “concession to that effect was properly made”. It is important to stress, in our submission, that what was made by the Chief Justice was a factual finding. It did, in part, rely on a concession and the concession was first recorded by the Chief Justice at page 235 of the appeal book at about line10. But the Chief Justice then, from paragraphs 190 through to 200, went through, albeit in short form, but went through it – the evidence – before making the finding of fact, as well as finding that the concession of counsel was properly made.

GAGELER J: What was the evidence on which that finding of fact was made? Was it primarily the report?

MR HOWARD: No. There was voluminous evidence before the Chief Justice which, happily, the Court only has a fragment of now. But your Honours can see, for example, if the Court goes to page 119 of the appeal book, there was an affidavit made by a Ms Fandry, and all of these annexures were before the Chief Justice.

Very significantly, for ..... proposition, there were nine EPA meetings. So from the time that the proponent first put the proposal there were nine EPA meetings that went from 30 April 2009 to 18 July 2013. The redacted minutes – redacted only for relevance, but the redacted minutes were all before the Chief Justice and the briefing notes which were prepared for the EPA were also before the Chief Justice.

So the finding of fact that is ultimately made – and your Honours will see, for example, and I do not need to take the Court in detail, but from paragraph 190 in the Chief Justice’s judgment, which is on page 235 where we were a moment ago, the Chief Justice made an assessment or looked to all of the minutes of the EPA. He looked to all of the briefing notes that were before the EPA. He looked at the other documents, including the three that the learned President in the Court of Appeal below referred to, and he drew also on the fact that the EPA had – and your Honours will see this at page 238 of the appeal book at paragraph 197, that although it was a live issue in the proceedings before the Chief Justice as to what did the EPA – did the EPA take into account the presumption or the policy on which we rely? The EPA had not adduced any evidence – had not produced any document in which reference was made to the policy, and your Honours will see that at paragraph 197, save for the minutes on 29 April 2010 which is some years before the assessment report is prepared.

So it is significant, in our submission, that one has regard to the fact that it was a factual finding made by the Chief Justice. It was not based solely on the concession and it was not a case of where there was a formal concession paid at the beginning or at a pleading stage. It was one that was made during the course of the proceedings before the Chief Justice based on a consideration of the evidence before the Chief Justice, including that which had been put and that which had not been put by the EPA. Our appeal ground 2, if leave is granted, really will need to be amended. So, rather than referring to the Court of Appeal ought to have proceeded on the basis of the concession, in truth it should be the Court of Appeal ought to have proceeded on the basis of the factual finding made by the Chief Justice.

GAGELER J: Really meaning that that is the preferable factual finding to be made given the evidence that was before the Chief Justice.

MR HOWARD: Yes, your Honour, and also that there was no appeal from that factual finding. There was no appeal from that factual finding by the State parties in the Court of Appeal, and there was no attempt to withdraw the concession. Now, the difficulty in what the Court of Appeal did, and your Honours can see it in the Court of Appeal judgment paragraph 79 to 82 which starts at appeal book 347 – apologies, it is appeal book 346. Her Honour the President at paragraph 79 on page 346 says:

In any event, this ground must fail on the facts.

She then refers to three documents, one of them in paragraph 79 which she calls the “preliminary environmental impact statement”. She refers in paragraph 80 to, in the second line, what she calls the “EPA approved EDS”. That, in fact, should be ESD because it is the Environment Scoping Document, and the last is what her Honour calls the “PER” which is more accurately the Environmental Review Document.

Three things to note about those: the first is that they are documents prepared by the proponent. They are not documents prepared by the EPA. Secondly, with the exception of a cursory reference in the preliminary environmental impact statement in paragraph 79, and I will take your Honours to it in a moment, those three documents do not deal – the proponent does not deal with the presumption or the policy. I am using policy not by reference to any one of those documents but the policy encompassed or embodied in the presumption.

So, with the exception of one cursory reference which I will take your Honours to in a moment, those three documents do not grapple with the presumption. The cursory reference, if I can take your Honours to the document which her Honour at about line 28 describes as the “preliminary environmental impact statement”. Your Honours will find that at appeal book 135, and this is obviously an extract of the exhibit, but your Honours will see in the first paragraph at about line 8, so it is the second sentence after a very long first sentence which reads:

The EPA has a presumption against recommending approval for projects –

and it goes on. That is the only reference to the presumption, or to the policy, that is made in the proponent’s three documents which the learned President relies on to effectively overturn the factual finding made by the Chief Justice.

The Court of Appeal in the judgment of the President took no account of the nine EPA meetings and the minutes thereof, the Court of Appeal took no account of the briefing notes that the Chief Justice had regard to, and the Court of Appeal did not take into account the EPA’s failure to adduce any evidence to the contrary on the point.

GAGELER J: Now, all of this goes to your proposed ground 2 - - -

MR HOWARD: It does.

GAGELER J: - - - which is a criticism of President McLure’s reasoning from paragraph 79 onwards. At least as expressed by her Honour, this is an alternative basis for a conclusion that she reaches by reference to principles of law up to paragraph 78. As I understand the way which you are now putting it, you need to establish the facts as found by the Chief Justice at first instance as the platform for making your legal submissions in relation to ground 1. Is that the way you are now dealing with it?

MR HOWARD: We are, your Honour.

GAGELER J: I see.

MR HOWARD: The difficulty we have is that if the finding that her Honour the President made at 79 which is;

this ground must fail on the facts.

If that stands, then as interesting a question as we seek to agitate in ground 1, factually we do not get off the ground. I know that it is normally not an attractive place to start a special leave application with a factual finding, but there was no appeal from the factual finding and the Court of Appeal in a very flawed way, in our respectful submission, has proceeded to overturn that factual finding where there was no appeal ground and it has done it on a completely flawed basis. So that we say that the Court of Appeal ought to have approached the question on the basis of the findings of fact made by the Chief Justice – that is, that the EPA did not have regard to the policy, the presumption at all in its consideration:

leading up to, and including, the Assessment Report.

Your Honours, can I turn then to ground 1, which is - - -

GAGELER J: Just let me understand it – ground 2 is not an independent ground. Ground 2 is something that goes nowhere of itself, does it, in your submission?

MR HOWARD: In the sense that we can win ground 2 and lose ground 1 - - -

GAGELER J: If you win ground 2, where does it get you alone?

MR HOWARD: It allows us the factual platform for ground 1.

GAGELER J: All right. Thank you.

MR HOWARD: Now, in the Court of Appeal, fundamentally, the submission that was put was wrongfully, in our submission, reformulated by the Court of Appeal as though we were complaining about the fact that the EPA was required to give reasons as to why it did not have regard to the presumption or the policy. That is not the proposition that we contended for, nor is it the proposition we contend for now.

We relied on the fact that there was an absence of reasons for the inference that there was no reason that the EPA did not have regard to the presumption or the policies that were in its own policies. In that sense, we say it is analogous to the way that the Chief Justice dealt with the matter in Li at about paragraph 31 where, in the absence of some reason, one was able to infer that there was an arbitrariness or a capriciousness about what was done.

GAGELER J: That is about what was done in the result. But, as I understand it, the arbitrariness or capriciousness that you are referring to is at a different level. It is not a complaint about the result being outside a reasonable range; it is about the absence of reasons in the reasoning process. Is that right?

MR HOWARD: With respect, we would not put it as the absence of reasons. What we would say is that it is a failure or it is an unreasonableness in the process adopted, and the unreasonableness – if I can go back a step. If a decision-maker departs from the process it has told the world it will adopt, but there is a reason expressed as to why, then that may not be an unreasonable course to adopt.

But here, the decision-maker having told the world in three very significant, well thought out, comprehensive documents how it is going to deal with critical assets, offsets, et cetera, and it then does not deal with them in that way and gives no reason, then we say that is an unreasonable process which has been adopted by that decision-maker.

GAGELER J: Well, let us be quite specific about this. You are not talking about the decision-making process. You are not talking about the procedures that lead to the decision. You are talking about the justification for the decision set out in the report itself.

MR HOWARD: If your Honour means by the process as in it went through the procedures in the administrative procedures, yes, we accept that that was done, but it was not done in the way that the EPA had told the world it was going to do it, and that is the core of the complaint.

GAGELER J: Yes.

MR HOWARD: We put this – I am conscious of the time – we put this in our submissions at paragraphs 32 and 33 in the appeal book at 360, that having enunciated a developed and considered position as to what it would do, it may be expected that a rational decision-making body would then follow that, unless there was a reason for it not to. So that is where the absence of the reasons has a significance, we say, your Honour. It is not that – it is not the complaint that was attributed to us by the Court of Appeal.

GAGELER J: I think we understand that. Thank you, Mr Howard.

MR HOWARD: May it please the Court?

GAGELER J: Yes, Mr Bydder.

MR BYDDER: May it please the Court. May I turn first in the reverse order of the order adopted by my friend? I shall deal first with the question of legal unreasonableness and then to turn to what is characterised as ground 2. Legal unreasonableness is concerned with whether the decision under review fell outside the area of decision-making authorised by the Act on its true construction. The question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

In this case, the decision under review was, relevantly, the EPA’s recommendation under section 44 of the Environmental Protection Act that the proposal be approved subject to conditions. In asserting legal unreasonableness, the applicant does not content that the outcome – that is, the recommendation itself – was legally unreasonable. That was not contended in the Court of Appeal and it is not contended here. That is, in the terms that was expressed by the plurality in Li at paragraph 85, the applicant does not suggest that the outcome was one in which the EPA’s recommendation itself bespeaks error.

In our submission, that is not simply a matter of accepting, as the applicant probably does, with respect, that the EPA can depart from its policies. We would say that it necessarily involved acceptance that, on the facts of this case, it was open to the EPA to make the recommendation that it did. The applicant also no longer contends as it did before his Honour the Chief Justice and before the Court of Appeal that the three policies upon which they rely were mandatory, relevant considerations. That necessarily involves, we would submit, acceptance that the Act did not require the EPA to have regard to its own policy documents as a condition of making a valid recommendation to the Minister.

The applicant does not rely on any other recognised species of jurisdictional error in the EPA’s decision-making process. Instead, the applicant contends that in the circumstances of this case, the EPA’s failure to take its policies into account without – and they borrow a phrase from the plurality in Li – an evident and intelligible justification constituted an unreasonable exercise of statutory power.

Now, I will come in a moment, your Honours, to how the Court of Appeal characterised that, but can I pause to note that the use of the phrase “evident and intelligible justification” in this context is a use that would put, with respect, the Court on notice about the deficiencies in the argument that is being put by the applicant. When the plurality use that expression, they used it in the context of the outcome, the decision in circumstances where a particular error, a recognised species of jurisdictional error could not be identified but, nevertheless, the reasons did not disclose an evident and intelligible justification for the approach that was taken.

GAGELER J: So here you say that the report sets out the reasoning process that leads to the recommendation and the recommendation is not said to be outside the scope of what a reasonable entity preparing that report would be able to come up with.

MR BYDDER: Indeed, your Honour, and particularly an entity as now must be accepted by the applicant was not required by its statute to have regard to the policies at all. Now, the Court of Appeal, your Honours, characterised the contention that was advanced by the applicants below as coming down to a claim that the EPA was obliged to give reasons if it departed from the position it had stated in the three policies. Contrary to my learned senior’s submissions this morning, that characterisation was apt in the Court of Appeal and it remains apt before this Court.

GAGELER J: I think he might be your opponent rather than your senior, in this context.

MR BYDDER: Indeed, your Honour. There is, in any event, your Honour, a concession that the EPA failed to have regard to the presumptions that were set out in the three policies. My learned friend has taken your Honours to the relevant text dealing with that. His Honour the Chief Justice considered that the concession had been properly made, but neither the concession nor the reasons of his Honour the Chief Justice go to why the EPA did not have regard for those presumptions.

The EPA’s report and the other evidence to which his Honour the Chief Justice referred are silent on why the presumptions against the use of offsets were not applied. As the applicant does not rely on outcome unreasonableness, it must be taken to accept that it was open to the EPA not to apply the presumptions. Consequently, the real complaint as, with respect, the Court of Appeal identified, must be that the report failed to supply reasons for not applying the presumptions and that the process adopted by the EPA is unreasonable for that reason.

That was ultimately how the unreasonableness ground was put in oral submissions before the Court of Appeal. If I can your Honours to the application book at page 303, at approximately line 8, my learned friend put to the court, after discussion about another ground of unreasonableness:

we contend that where the EPA has told the world this is how we are going to do it, there are critical assets which must be fully preserved and protected and we are – we have these presumption. To then depart from those without a word as to why is not a reasonable process.

In our submission, that cannot amount to legal unreasonableness because it is inconsistent with the Act which is the source of the relevant legal standard of unreasonableness, as the plurality observed in Li at paragraph 67. The Act does not require the EPA to have regard to its policies at all and further section 44(2) and (2a) of the Act, which appear in the application book at page 388, set out what the EPA’s report must contain and what it may contain and the EPA’s policies and their applications to the case, are not amongst the matters which section 44 identifies as having to be included in the report. In those circumstances, it is our submission that the Court of Appeal did not fail to deal with the applicant’s legal unreasonableness ground. It correctly characterised it and dealt with it and did not fall into error, in our respectful submission, in so doing.

Can I turn then to the question of the appeal, the second ground of appeal and the error for which my friends contend. It is to be noted, your Honours, with respect, that his Honour the Chief Justice in his reasons did not refer to the documents upon which the Court of Appeal relied and the Fandry affidavit in his Honour’s discussion of whether or not the EPA had had regard to the relevant policies or indeed the process that had been followed. It is correct, as my learned friend observes, that there were nine EPA meetings which did not disclose any discussion of the policies, and the briefing notes that were relied upon similarly did not.

But that was not all the evidence. The Preliminary Environment Impact Assessment, the Environment Scoping Documents and what her Honour, the President referred as the “PER”, each of them did refer to the relevant policies, although we accept, as my learned friend points out, that in the documents that were cited by her Honour the President, the only reference to the assumption is in the application book at page 135 in the preliminary EIA. The submission we make ultimately, about the second ground comes to this. Firstly, that the Court of Appeal was not bound by the concession that had been made below by the first and second respondents in this Court.

NETTLE J: What about the finding? Why was it not bound by that?

MR BYDDER: No, your Honour.

NETTLE J: It was bound by that.

MR BYDDER: It was open, your Honour, to the Court of Appeal to form its own view on the evidence.

NETTLE J: But you did not appeal against the finding.

MR BYDDER: We did not appeal against the finding, your Honour, we accept that.

NETTLE J: So how could it be open to the Court of Appeal to come to a different conclusion?

MR BYDDER: Your Honour, the approach that was taken by the Court of Appeal on this was simply that the ground of legal unreasonableness had not been advanced at first instance, and in dealing with legal unreasonableness it looked afresh, if I can put it that way, at the factual foundation for that particular ground. That, as I understand, is the basis upon which the Court of Appeal proceeded in that regard.

NETTLE J: Thank you.

MR BYDDER: What we say in respect of that is that in light of the documents that were in evidence before his Honour Chief Justice Martin, and that were in evidence before his Honour the Chief Justice, it was open to the Court of Appeal to come to the view that it did on the relevant findings of fact.

The other observation that it is appropriate to make in that context, your Honours, is that it has been said that the EPA did not in fact consider any document; there was no document produced during the assessment period which referred to the relevant documents. As her Honour the President observed, if I can say in respect of the relevant EIA, ESD and PER – that is, each of the stages in the assessment process – each of them required the approval of the EPA before they could be published under the administrative procedures and in that respect the EPA at least did have

regard to documents, it did refer to the relevant policies and, at least in the case of the preliminary EIA, to the presumption.

GAGELER J: All right. Is there something more, Mr Bydder?

MR BYDDER: Otherwise we adopt our written submissions, if it please the Court.

GAGELER J: Yes, thank you. Mr Howard, do you have anything in reply?

MR HOWARD: Your Honour, the Chief Justice did have the three documents that the Court of Appeal had before it and he did refer to them in the course of his judgment. My friend says that the Chief Justice’s reasons are silent on the conduct of the EPA. As I have endeavoured to show by taking your Honours to the passages in the Chief Justice’s judgment, the Chief Justice in fact dealt with the EPA conduct and its non-consideration, as it were, at paragraph 193 based on all of the evidence.

In terms of the unreasonableness ground, the State parties would seek to confine legal unreasonableness as it applies to process to what they say is recognised species of jurisdictional error. That language, of course, comes out of the Full Federal Court in Eden. In our submission, that is a restricted reading of passages in the decision in Li. We understand, of course, that Li ultimately was an outcome case, if one can call it that, rather than necessarily a process case.

But as we have endeavoured to show in our submissions, in our reply submissions, the statements made in the various judgments are not so limited and we say that must be so, with respect, because if the State parties are correct, then legal unreasonableness as it applies to process is largely meaningless because outcome we understand – that is House v King, Wednesbury unreasonableness, Avon Downs.

But if in process all it means is that one must identify an already accepted head or ground of jurisdictional error, then the label or the rubric of unreasonableness as it applies to process means nothing. It adds nothing to the doctrine or it adds nothing to the debate. We have relied in particular on your Honour Justice Gageler’s – some passages in your Honour’s judgment in Li where your Honour was talking about that reasonableness must extend to the decision-making process rather than being limited to looking at the outcome in our submission. May it please the Court.

GAGELER J: Thank you, Mr Howard.

We are of the opinion that there are insufficient prospects to warrant the grant of special leave to appeal in this matter. Special leave is therefore refused.

What do we do about costs, gentlemen?

MR BYDDER: May it please the Court. I move for orders that the applicant pay the first and second respondent’s costs of the application be taxed.

GAGELER J: Can you tell me what happened in the Court of Appeal?

MR BYDDER: In the Court of Appeal there was an application for costs which was opposed, unsuccessfully, by the applicant. My friend helpfully observes that it was a majority verdict. Her Honour the President was in dissent on that question.

GAGELER J: Very well. Mr Howard, do you have anything to say? We have seen your written submissions.

MR HOWARD: I do not seek to add to the written submissions, your Honour.

GAGELER J: We see no reason to depart from the usual order that the unsuccessful applicant is to pay the respondent’s costs, and that is the order that will be made in this case.

The Court will now adjourn to 9.15 am on Wednesday, 21 December 2016 in Sydney.

AT 12.33 PM THE MATTER WAS CONCLUDED