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CHIEF EXECUTIVE OFFICER, DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION -v- WAROONA RESOURCES PTY LTD [2023] WASCA 73 (18 May 2023)

Last Updated: 18 May 2023

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION : CHIEF EXECUTIVE OFFICER, DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION -v- WAROONA RESOURCES PTY LTD [2023] WASCA 73

CORAM : BUSS P

MITCHELL JA

VAUGHAN JA

HEARD : 20 MARCH 2023

DELIVERED : 18 MAY 2023

FILE NO/S : CACV 60 of 2022

BETWEEN : CHIEF EXECUTIVE OFFICER, DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION

First Appellant

MINISTER FOR THE ENVIRONMENT

Second Appellant

AND

WAROONA RESOURCES PTY LTD

Respondent

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : WAROONA RESOURCES PTY LTD -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION [2022] WASC 174

File Number : CIV 1096 of 2022

Statutory construction - Construction of an exemption of asbestos containing material from waste levy - Whether the exemption applied to the whole volume of mixed waste, part of which comprises 'asbestos containing material' which it is not reasonably practicable to separate from the mixture, or only the component of the mixture which is 'asbestos containing material' - Whether court is justified in reading the statutory provision for the exemption as if it contained omitted words

Legislation:

Environmental Protection (Controlled Waste) Regulations 2004 (WA), reg 42, reg 44
Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA), reg 5(1A), reg 5(1)(i)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Solicitors:

Case(s) referred to in decision(s):

JUDGMENT OF THE COURT:

1. This appeal raises a question as to the proper construction of reg 5(1)(i) of the Waste Avoidance and Resource Recovery Levy Regulations 2008 (WA) (Levy Regulations). In very general terms, the Levy Regulations provide for the assessment of a waste levy calculated by reference to the volume of waste disposed of to landfill. Regulation 5(1)(i) provides for asbestos containing material to be exempt from the waste levy in certain circumstances. 'Asbestos containing material' is defined to mean any manufactured material or thing that, as part of its design, contains asbestos.[1]
2. The issue is whether the waste levy exemption in reg 5(1)(i) applies to:
   1. the whole volume of a mixture comprising 'asbestos containing material' which it is not reasonably practicable to separate from other material in the mixture; or
   2. only the component of the mixture which is 'asbestos containing material'.
3. For the following reasons, in our view the exemption provided for in reg 5(1)(i) of the Levy Regulations only applies to the component of the mixture which is 'asbestos containing material'.

4. The Levy Regulations form part of a complex interlocking legislative scheme which, in broad terms, imposes a waste levy[2] on a licensee in respect of waste from the metropolitan area disposed of to a licensed landfill. The relevant provisions are described in detail in the reasons of Beech J (as his Honour then was) in Eclipse Resources Pty Ltd v The State of Western Australia [No 4],[3] (Eclipse Primary Decision). We adopt that comprehensive summary without repeating it.
5. Also relevant to this appeal are the Environmental Protection (Controlled Waste) Regulations 2004 (WA) (Controlled Waste Regulations). In general terms, the Controlled Waste Regulations regulate the disposal of certain kinds of waste which pose environmental hazards. Asbestos is 'controlled waste' for the purposes of the Controlled Waste Regulations.[4]
6. The Levy Regulations in effect provide for the assessment of the liability of the licensee of a licensed landfill to pay a waste levy. Regulation 5(1)(i) of the Levy Regulations allows the licensee to claim an exemption from the Levy Regulations 'for the following waste received at a licensed landfill in any return period':

[A]sbestos containing material if the material is —

(i) taken to the licensed landfill otherwise than in contravention of [reg 44 of the Controlled Waste Regulations]; and
(ii) buried at the licensed landfill in compliance with the conditions on the licence.

7. Regulation 5(1A) of the Levy Regulations defines the phrase 'asbestos containing material' used in reg 5 to mean:

[A]ny manufactured material or thing that, as part of its design, contains asbestos[.]

Regulation 5(1)(i) is the only place in the Levy Regulations where the defined phrase 'asbestos containing material' is used. The definition of that phrase is therefore specifically directed to its use in reg 5(1)(i) of the Levy Regulations.

8. Regulation 44 of the Controlled Waste Regulations provides:

A person who takes material containing asbestos to a waste facility ... which is not —

(a) separated from other material for disposal where that is reasonably practicable; and
(b) wrapped or otherwise contained in a manner that prevents asbestos fibres entering the atmosphere during transportation on a road; and
(c) labelled or marked with the words 'CAUTION ASBESTOS' in letters not less than 50 mm high,

commits an offence. (emphasis added)

9. Regulation 42 of the Controlled Waste Regulations contains its own definition of 'asbestos' and 'material containing asbestos' for the purposes of pt 3 div 6 of those Regulations. In contrast to the Levy Regulations, 'material containing asbestos' as defined in the Controlled Waste Regulations need not be manufactured at all and need not contain asbestos as part of its design. The term 'waste facility' comprehends a licensed landfill.[5]

10. The respondent is the registered proprietor of property situated at Waroona (Premises) and is the holder of licence 8651/2012/1 for the Premises (Licence). The License was issued under pt V div 3 of the Environmental Protection Act 1986 (WA) and allows the respondent to undertake the activities of landfilling, waste processing and crushing and screening of building material at the Premises. The Premises is a licensed landfill for the purposes of the Levy Regulations.
11. In July 2019, the Department of Water and Environmental Regulation (Department) granted the respondent an exemption from payment of the waste levy under reg 5(1)(i) of the Levy Regulations in relation to the acceptance and burial of asbestos containing material for the period of 1 July 2019 to 30 June 2020 (Exemption Period). The respondent lodged three returns with the Department during the Exemption Period. Those returns identified, as being exempt from the waste levy, asbestos containing material mixed with sand and/or soil. The respondent contended that it was not reasonably practicable to separate the asbestos containing material from the mixture.
12. In November 2021, the Director General of the Department wrote to the respondent, rejecting the respondent's claim that the whole volume of the mixture was exempt from the payment of waste levy.[6]

13. By originating summons filed 7 February 2022, the respondent sought a declaration as to the proper construction of the Levy Regulations. The construction summons was supported by an affidavit which annexed the licences and relevant correspondence. Also before the primary court was a document published by the Department in June 2018 titled Approved manner for estimating the volume or weight of waste received at and disposed of to landfills (Approved Estimates Document). The document indicated that it established the approved manner for estimating the volume or weight of waste received at and disposed of to landfill as referred to in regs 9(1), 9(2A), 10(8) and 12A(2) of the Levy Regulations.[7]
14. The originating summons was heard by the master, who upheld the respondent's claim for declaratory relief. The declaration made by the master was in the following terms:[8]

[U]pon the proper construction of the [Levy Regulations] and [reg 44 of the Controlled Waste Regulations], and upon the proper construction of Exemption Notice EDSP08-19 dated 26 July 2019 issued pursuant to Regulation 5 of the [Levy Regulations] (Notice), during the currency of the Notice, soil and/or sand containing material that, as part of its design, contains asbestos:

1. taken to [the Premises] otherwise than in contravention [of] Regulation 44;
2. buried at the premises in compliance with the conditions of [the Licence];
3. where it was not/is not reasonably practicable to separate that soil and sand from the material that, as part of its design, contains asbestos,

was and is exempt from the imposition of levy pursuant to the [Levy Regulations].

15. In his written reasons, the master identified the sole issue as being the construction of reg 5 of the Levy Regulations.[9] The master summarised the respondent's position in the following terms:[10]

[The respondent] says the [asbestos containing material] contained in the material is exempt from the levy if it is:

(a) taken to the premises in conformity with reg 44 of the Controlled Waste Regulations; and
(b) buried in the premises in compliance with the conditions on the licence.

The [respondent] says that conclusion cannot change simply because the [asbestos containing material] is intermixed with material that, on its own, is not otherwise exempt and in circumstances where it is not reasonably practicable to separate them. The [respondent] accepts the legislative regime does not specifically deal with this situation. The [respondent] says however this is consistent with the aims of the regime. Where it is reasonably practicable to separate the [asbestos containing material], that must be done. But if it is not practical to separate the material, then it is the clear legislative intent that the whole of the material should be exempt.

16. The master gave the following reasons for adopting the respondent's position and finding that the respondent was entitled to the declaration sought:[11]

In my view, the [respondent's] interpretation of the regime is to be preferred. I accept this results in entire mixed loads being exempt from the levy. But I see no alternative to that approach. Something must be done with a mixed load. It contains asbestos and therefore it is dangerous. It is not practical to separate the [asbestos containing material] from other material. The logical way to deal with that material is exempt the load and bury the waste. The [respondent] has attempted to estimate the amount of the [asbestos containing material] in each load and has complied with the letter of the regulations.

17. The appellants appeal against the declaratory order made by the master on the sole ground that, in effect, the master erred in law in finding that, on the proper construction of the regulations, the whole volume of a mixture of asbestos containing material and other material which it is not reasonably practicable to separate was exempt from the waste levy.
18. Other grounds of appeal challenged what were accepted by the respondent to be errors in the master's reasons as to the extent of the agreed facts. However, those errors were not capable of affecting the correctness of the declaration made by the master as to the proper construction of the Levy Regulations. The other grounds were appropriately abandoned at the hearing of the appeal.[12]

19. There are three aspects of the regulations which, in our view, tend to support the respondent's argument and the master's conclusion as to the proper construction of reg 5(1)(i) of the Levy Regulations.
20. First, the reference in reg 5(1)(i) to reg 44(a) of the Controlled Waste Regulations contemplates that it may not be reasonably practicable to separate asbestos containing material from a mixture of waste. A mixture can be taken to a licensed landfill in compliance with reg 44 of the Controlled Waste Regulations where it is not reasonably practicable to separate the asbestos containing material from the mixture. This provides context which is consistent with a construction of reg 5(1)(i) of the Levy Regulations which exempts from the waste levy a mixture which it is not reasonably practicable to separate.
21. Secondly, the provisions of the Levy Regulations do not set out a mechanism by which the volume of asbestos containing material in a mixture is to be determined. That is particularly so in respect of category 63 licensed landfills (for inert waste such as asbestos) in the metropolitan region. Regulation 10 provides for the volume of waste disposed of to landfill on such premises to be determined by survey, which could not determine the volume of a particular kind of waste in a mixture. The volume of waste is a variable in the levy calculation provided for by reg 12 of the Levy Regulations
22. This is not a necessarily insuperable difficulty as, under reg 10(8), the licensee is to 'estimate in the approved manner, the number of cubic metres of any portion of that waste for which an exemption granted on application under regulation 5(1) ... is in effect'. The regulations leave open the prospect of some means other than survey being used to estimate the volume of asbestos containing material within a mixture of waste (although no such method is included in the Approved Estimates Document). However, the absence of any provision for estimating the volume of components of mixtures in provisions dealing with how the volume of waste is to be calculated is a contextual matter in support of the respondent's construction of reg 5(1)(i) of the Levy Regulations.
23. Thirdly, the purpose of the legislative scheme generally, and the purpose of exempting asbestos containing material from the waste levy, count in favour of the respondent's construction.
24. In the Eclipse Primary Decision, Beech J identified the purpose of the overall legislative scheme as being to create a financial disincentive to the disposing of waste to landfill with the aim of reducing the amount of waste dealt with in that way. The object of the waste levy is to discourage the disposal of waste to landfill, and to encourage the recycling, reuse and reprocessing of waste.[13] On appeal from the Eclipse Primary Decision, this court identified the general legislative purpose in the following terms:[14]

It may be inferred that the legislature intended that a levy would, through a charge back to the supplier, ultimately be borne by the source of the waste material, and that the levy would thereby create a financial incentive to reduce or eliminate the volume or extent of waste created at its source. Further, there would be a financial incentive on the generator of the waste to reuse, or at least give consideration to reusing, to the greatest extent possible, its left over materials in its own operations. In other words, the legislature, it may be inferred, intended that whether the waste is disposed of into what Eclipse calls a traditional landfill, or is used to fill voids elsewhere, the disposal should come at a cost which acts, ultimately, as a disincentive to the production of waste and an incentive to the more careful management and reuse of resources in the first place.

25. It is readily apparent why asbestos containing material was made exempt from the waste levy. The recognition of the highly hazardous nature of asbestos means that it is no longer generally used in manufactured materials. Its reuse or recycling is dangerous to the community. The public interest is in the safe disposal of all asbestos containing material. It is contrary to that public interest for there to be a financial disincentive for the proper disposal of asbestos containing material to landfill. It may be inferred from the subject and context of the provision, that the reason asbestos containing material is exempt is that the general purpose of the legislation does not require it and the policy of safe disposal reflected in the Controlled Waste Regulations would be impeded if the imposition of the waste levy operated as a financial disincentive to disposing of asbestos containing material to a licensed landfill.
26. The appellants' construction of reg 5(1)(i) of the Levy Regulations would not advance the general purpose of the legislation, as other material which it is not reasonably practicable to separate from asbestos containing material cannot be reused or recycled. The appellants' construction would impede the purpose of the exemption of asbestos containing material by imposing a financial disincentive to properly dispose of a mixture which it is not reasonably practicable to separate to a licensed landfill by leaving a levy in place for the non‑asbestos component of the mixture. By contrast, the respondent's construction would not impede the general purpose of the legislation and would advance the purpose in exempting asbestos containing material from the waste levy.

27. While, in our view, the above matters tend to favour the respondent's construction of reg 5(1)(i) of the Levy Regulations which the master adopted, the legislative text cannot accommodate that construction.
28. The importance of statutory text to the exercise of statutory construction is well established. The principles were summarised by this court in Director General, Department of Transport v McKenzie.[15] That summary is repeated below for ease of reference.
29. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd,[16] French CJ, Hayne, Crennan, Bell and Gageler JJ observed:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue  [2009] HCA 41 ; (2009) 239 CLR 27 at 46 [47]). So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.

30. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The statutory text is the surest guide to Parliament's intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy.[17]
31. The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.[18] The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[19] The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose.[20]
32. Inserting the definition of 'asbestos containing material' into s 5(1)(i) of the Levy Regulations, the provision reads:

A licensee may by application claim an exemption from these regulations for the following waste received at a licensed landfill in any return period —

...

(i) [any manufactured material or thing that, as part of its design, contains asbestos] if the material is —

(i) taken to the licensed landfill otherwise than in contravention of [reg 44 of the Controlled Waste Regulations]; and
(ii) buried at the licensed landfill in compliance with the conditions on the licence.

33. Sand and soil, even when mixed with manufactured asbestos, is not a 'manufactured material or thing that, as part of its design, contains asbestos'. The only material in the mixture which meets that description is the component of the mixture that comprises manufactured materials or things which, as part of their design, contain asbestos. The soil or sand is not a manufactured material or thing, and the soil or sand is not designed to contain asbestos. The fact that it is not reasonably practicable to separate the soil and sand from the manufactured asbestos material or thing does not make the soil and sand a manufactured material or thing that contains asbestos as part of its design.
34. Senior counsel for the respondent accepted that his construction involved reading words into the provision. The effect of the additional words was as follows:[21]

A licensee may by application claim an exemption from these regulations for the following waste received at a licensed landfill in any return period —

...

(i) asbestos containing material [and any material from which it is not reasonably practicable to separate] if the material is —

(i) taken to the licensed landfill otherwise than in contravention of the Environmental Protection (Controlled Waste) Regulations 2004 regulation 44; and
(ii) buried at the licensed landfill in compliance with the conditions on the licence.

35. The general principles concerning the circumstances in which words may be read into legislation were summarised by this court in Australian Unity Property Pty Ltd v City of Busselton.[22] Those general principles were not controversial in this appeal. Again, that summary is repeated below for ease of reference.
36. In Taylor v The Owners – Strata Plan 11564,[23] the High Court recognised that there are some circumstances in which purposive construction may allow for the reading of a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. French CJ, Crennan and Bell JJ observed:[24]

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'. (citations omitted)

37. Their Honours referred to three conditions identified by Lord Diplock in Wentworth Securities v Jones,[25] as modified by Lord Nicholls in Inco Europe Ltd v First Choice Distribution.[26] Those conditions were summarised by French CJ and Bell J in Minister for Immigration v SZJGV as follows:[27]

Three matters of which the court must be sure before interpreting a statute in this way were the intended purpose of the statute, the failure of the draftsman and parliament by inadvertence to give effect to that purpose, and the substance of the provision parliament would have made. The third of these conditions was described as being of 'crucial importance'. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation.

38. In Taylor, French CJ, Crennan and Bell JJ went on to note:[28]

However, it is unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that 'the modified construction is reasonably open having regard to the statutory scheme' because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd [(1997) [1997] HCA 53; 191 CLR 85 at 113], the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, '[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances'.

Lord Diplock's speech in Wentworth Securities laid emphasis on the task as construction and not judicial legislation. In Inco Europe Lord Nicholls of Birkenhead observed that even when Lord Diplock's conditions are met, the court may be inhibited from interpreting a provision in accordance with what it is satisfied was the underlying intention of Parliament: the alteration to the language of the provision in such a case may be 'too far‑reaching'. In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution. (some citations omitted)

39. Identification of purpose and drafting errors is therefore a matter of statutory construction, giving effect to the whole of the statutory text in its context. Where there is an obvious drafting error, the true meaning of the language is apparent from the statutory text understood as a whole in its relevant context, even though that meaning is not literal or grammatical. The objective legislative intention is revealed by the statutory text, even if the manner in which the intention is revealed involves an ungrammatical use of language in other than its ordinary sense. The objectively intended meaning must be apparent from the perspective of the reader, as opposed to the author, of the statutory text.
40. This concept was explained by Gageler and Keane JJ in Taylor:[29]

Statutory construction involves attribution of legal meaning to statutory text, read in context. 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always'. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair. (citations omitted)

While their Honours were in dissent in Taylor, nothing in the majority judgment was inconsistent with the above statement of principle.

41. In our view, in the present case the language used by the draftsperson presents an insurmountable obstacle to the respondent's construction. It cannot be concluded with certainty that the draftsperson and Governor in Executive Council by inadvertence failed to give effect to the purpose of the exemption. It may be that the general purpose of the exemption identified above is not as effectively achieved as it would be if the whole of a mixture which it is not reasonably practicable to separate was exempt. But the purpose would still be achieved to a significant extent by the exemption of only asbestos containing material (including the proportion of a mixture which is constituted by asbestos containing material). The draftsperson may well have intentionally limited the exemption to only asbestos containing material (including the proportion of a mixture comprising asbestos containing material). The unambiguous language of the provision may well constitute a deliberate policy choice rather than an inadvertent drafting slip.
42. At one point in its written submissions, the respondent described the legislative purpose in the following terms:[30]

[T]he provisions are directed at providing for and incentivising the safe and effective disposal of harmful materials, by exempting from the imposed levy asbestos containing materials (ACM) and material from which it is not reasonably practicable to separate (because there can be no safe use for those materials) and by imposing a levy on the disposal to landfill of materials that can reasonably be separated (because those materials are able to be safely reused).

43. However, that very specific statement of legislative purpose assumes the correctness of the respondent's construction. The specific purpose identified by the respondent includes as an element the purpose of exempting material that it is not reasonably practicable to separate from asbestos containing material. In our view, the purpose identified by the respondent is derived from an assumption about the desired or desirable reach of the exemption rather than being based in the legislative text.
44. It is also significant that the scope of the exemption in reg 5(1)(i) of the Levy Regulations is narrower than material which may be disposed of to a waste facility without contravening reg 44 of the Controlled Waste Regulations. Regulation 44 of the Controlled Waste Regulations permits a person to dispose of material containing asbestos which is not manufactured, and which does not contain asbestos as part of its design. On any view, reg 5(1)(i) of the Levy Regulations does not exempt waste which is not comprised of any manufactured material or thing. The fact that reg 5(1)(i) does not capture all asbestos which may be disposed of to a waste facility without contravening reg 44 is a deliberate legislative choice.
45. Material dealt with in contravention of reg 44 is not eligible for exemption from the waste levy. But that is not to say that all material dealt with in a way that does not contravene reg 44 is eligible for the exemption. The words of reg 5(1)(i)(i) do not expand on the material which is subject to the exemption in reg 5(1)(i). Rather, the words of reg 5(1)(i)(i) impose an additional requirement for the exemption of waste that is asbestos containing material as defined in reg 5(1A). Regulation 5(1)(i) only provides for the exemption of asbestos containing material and not all waste that can be disposed of to a waste facility without contravening reg 44. That counts against using the reference to reg 44 in reg 5(1)(i)(i) to expand upon the meaning of the words used in the chapeau to reg 5(1)(i) of the Levy Regulations.
46. Recognising that construction of the regulations is neither speculation nor repair, in our view the respondent's purposive construction departs too far from the legislative text to be accepted. We agree with the submission of senior counsel for the appellants, that the respondent's construction is not open on the unambiguous language used in reg 5(1)(i) of the Levy Regulations. The words proposed to be added by the respondent substantially expand upon the meaning of the defined term 'asbestos containing material'. That expansion in meaning is well beyond the words used in a definition formulated only for the purpose of the specific regulation. The master's approach paid insufficient attention to the statutory language of the provisions he was construing. The master erred by declaring, in effect, that the whole volume of a mixture of soil, sand and asbestos containing material which it is not reasonably practicable to separate is exempt from the waste levy if it is disposed of at the Premises in accordance with the conditions of the respondent's Licence.
47. Therefore, only asbestos containing material as defined in reg 5(1A) of the Levy Regulations is exempt from the waste levy under reg 5(1)(i) of those regulations. Soil and sand which is mixed with, and cannot practicably be separated from, asbestos containing material is not exempt. In the case of such a mixture, only the estimated volume of asbestos containing material comprised within the mixture is exempt from the waste levy under reg 5(1)(i) of the Levy Regulations.

48. For these reasons, in our view, the appeal must be allowed, the declaration made by the master must be set aside and there should be substituted an order dismissing the respondent's application by originating summons. We would hear from the parties as to the precise terms of these orders, and on the question of the costs of the primary proceedings and this appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

RL
Associate to the Honourable Justice Mitchell

18 MAY 2023

[1] Regulation 5(1A) of the Levy Regulations.
[2] Imposed under the Waste Avoidance and Resource Recovery Act 2007 (WA) and the Waste Avoidance and Resource Recovery Levy Act 2007 (WA).
[3] Eclipse Resources Pty Ltd v The State of Western Australia [No 4] [2016] WASC 62; (2016) 307 FLR 221 [444] - [509].
[4] Regulation 2 (definition of 'controlled waste') and sch 1 of the Controlled Waste Regulations.

[5] See reg 2 par (a) of the definition of 'waste facility' read with reg 42 (definition of 'waste facility') of the Controlled Waste Regulations.
[6] Primary decision [2]; appellants' submissions, par 3 (White AB 7 - 8).
[7] Green AB 285.
[8] Primary orders.
[9] Primary decision [14].
[10] Primary decision [15] - [16].
[11] Primary decision [20].
[12] Appeal ts 2 - 3.
[13] Eclipse Primary Decision [511] - [513].
[14] Eclipse Resources Pty Ltd v Minister for Environment [2017] WASCA 90; (2017) 223 LGERA 313 [205] (Eclipse Appeal Decision).
[15] Director General, Department of Transport v McKenzie [2016] WASCA 147 [45] - [48], adopted in Eclipse Appeal Decision [154].
[16] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39]. See also Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [31] (French CJ, Gummow, Hayne, Crennan & Kiefel JJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).

[17] See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT)  [2009] HCA 41 ; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ).
[18] See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey & Gummow JJ).
[19] See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J).
[20] See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
[21] See appeal ts 18 - 19, 26 - 27 and respondent's supplementary submissions, par 9. Senior counsel for the respondent also adopted additional words to the effect of '[and any material from which it is not reasonably practicable to separate from the asbestos containing material].
[22] Australian Unity Property Pty Ltd v City of Busselton [2018] WASCA 38 [87] - [91].
[23] Taylor v The Owners - Strata Plan 11564 [2014] HCA 9; (2014) 253 CLR 531.
[24] Taylor [38].
[25] Wentworth Securities v Jones [1980] AC 74, 105.
[26] Inco Europe Ltd v First Choice Distribution [2000] UKHL 15; [2000] 1 WLR 586; [2000] 2 All ER 109, 115.
[27] Minister for Immigration v SZJGV [2009] HCA 40; (2009) 238 CLR 642 [9].
[28] Taylor [39] - [40].
[29] Taylor [65].

[30] Respondent's supplementary submissions, par 7.