Re Queensland Nickel Management Pty Ltd and Great Barrier Reef Marine Park Authority; Townsville Port Authority; North Queensland Conservation Council; John C Collingwood As Representative of the Saunders Beach Action Group; Queensland Commercial Fisher [1992] AATA 161 (1 June 1992)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: QUEENSLAND NICKEL MANAGEMENT PTY LTD
And: GREAT BARRIER REEF MARINE PARK AUTHORITY; TOWNSVILLE
PORT AUTHORITY;
NORTH QUEENSLAND CONSERVATION COUNCIL; JOHN C.
COLLINGWOOD AS REPRESENTATIVE
OF THE SAUNDERS BEACH ACTION GROUP; QUEENSLAND COMMERCIAL
FISHERMEN'S
ORGANISATION; and THE STATE OF QUEENSLAND
No. Q90/474
AAT No. 7372B
Environmental

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
D.P. Breen(1) (Deputy President) (Presidential Member)

CATCHWORDS

Environmental - Interlocutory hearing - applicant seeking to withdraw application for review after hearing but before decision - whether unilateral withdrawal open - resistance by other parties - natural justice requirements - opposition to withdrawal to be heard - determination that proper forum for the question is Tribunal as constituted for hearing - direction that hearing be resumed.

Administrative Appeals Tribunal Act 1975 s 33(2)(b), 35, 39

HEARING

BRISBANE
1:6:1992

ORDER

Pursuant to the authority delegated to me under paragraph (b) of the subsection 33 (2) of the Administrative Appeals Tribunal Act 1975 (Cth) as amended by the Honourable Justice P.R.A. Gray, the Presiding Member of this Tribunal for the purposes of the hearing of this proceeding, I HEREBY DIRECT that the hearing of the proceeding be re-constituted and that it resume at 10 a.m. on Tuesday 23 June 1992 at the Family Court of Australia at Townsville for a purpose limited to enabling any party/ies wishing so to do to make submissions on the purported withdrawal by the applicant of its application for review of the decision to which the proceeding relates.

My reasons for this direction were delivered orally in Brisbane at 2.30 p.m. on 1 June 1992. Those reasons are reproduced in writing and presented herewith.

DECISION

The decision under review in this matter was made on 14 September 1990 by the respondent, the Great Barrier Reef Marine Park Authority. By its terms it refused an application by the applicant for an approval to establish within the boundary of the Marine Park and in Halifax Bay near Townsville a facility for the mooring of bulk ore container ships and the unloading of the cargoes of those ships into shuttle barges pushed by tugs. That application had been lodged with the Authority on 31 March 1989.

2. On 15 October 1990, Queensland (then Dallhold) Nickel Management Pty Ltd lodged with this Tribunal an application for review of the Authority's decision of 14 September 1990.

3. On the following dates, interlocutory proceedings were conducted.
* 13 December 1990

* 17 December 1990
* 20 December 1990
* 31 January 1991 )
) These were conducted in Townsville
* 1 February 1991 )
* 28.3.91
* 11.4.91
* 24.4.91
* 10.5.91
* 14.5.91
* 17.5.91
* 21.5.91
* 28.5.91
* 25.6.91

4. Some of these interlocutory hearings were listed at the request of various of the parties. Most were listed on the Tribunal's initiative. All were designed by the Tribunal to ensure a speedy start to the hearing of the substantive merits of the matter, a start which occurred on 1 July 1991 in Townsville.

5. The hearing before this Tribunal proved to be far lengthier than any of the estimates of Counsel and other representatives of the parties, in the event concluding on 8 April 1992. It occupied 92 actual hearing days, producing a transcript of in excess of 8,000 pages and a total of 412 exhibits.

6. The length of the hearing was a matter which at all times after 1 July 1991 was essentially in the hands of the parties. That is a consequence of the dictates of the rules of natural justice which for relevant purposes, so far as this Tribunal is concerned, are essentially enshrined in Section 39 of the Administrative Appeals Tribunal Act.

7. That Section is in the following terms:

"Subject to sections 35, 36 and 36B, the Tribunal shall ensure that
every party to a proceeding before the Tribunal is given a
reasonable opportunity to present his case and, in particular, to
inspect any documents to which the Tribunal proposes to have regard
in reaching a decision in the proceeding and to make submissions in
relation to those documents."

8. The Tribunal on the final day of the hearing reserved its decision.

9. On the morning of Wednesday last, 27 May 1992, (7 weeks to the day after the conclusion of the hearing proper) the Registrar of the Tribunal received a letter from the Australian Government Solicitor's Office, which at all times has represented the respondent Authority. Set out below is a reproduction of that letter in order that it may enter the public domain.

"I have been advised by the Applicant's Solicitors that it is the
Applicant's intention to submit a notice purporting to withdraw this
Application and that such notice will be submitted to you later this
afternoon.
The Applicant's solicitors are aware that my client would be
extremely concerned at the disposal of these proceedings other than
by way of a decision on the merits, because of the extraordinary
resources committed to it and all other parties to the Application to
date. I have advised the Applicant's Solicitors that my client will
challenge the efficacy of any purported withdrawal and would object
to such a withdrawal if the Tribunal was disposed to consider an
Application in that regard.
Notwithstanding some previous conflicting pronouncements of the
Tribunal, my client takes the view that there is no power in the
Administrative Appeals Tribunal Act or otherwise, allowing the
Applicant to unilaterally withdraw the subject Application.
Further, it is my respectful submission that you have no power to
accept without argument, a document purporting to unilaterally
withdraw this Application. In the alternative, the submission will
be that the Applicant is required to obtain the leave of the
Tribunal to achieve a withdrawal and that amongst other things the
principles of natural justice require that the Respondent be given
the opportunity to advance argument.
Accordingly I request that in the event that you receive any Notice
of Withdrawal of the Application or similar document, you list this
Application for argument before accepting that document for filing.
In no way do I wish to influence or be seen to attempt to influence
any Decision of the Tribunal and for this reason request that you do
not refer this letter to any member of the Tribunal which heard this
Application or otherwise communicate the contents of this letter to
any other person until such time as it becomes necessary for you to
decide whether to accept such document for filing. It is of serious
concern to myself and my client that it not, in any manner
whatsoever, influence the substantive merits of the Applicant's
case."

10. The Registrar, Mr Schulz, replied and the reply is also hereby made public. It reads:

"I refer to your facsimile of 27 May concerning the above case, and
a possible application by Queensland Nickel to 'withdraw' the
application.
It is not at all appropriate for the matter you raise to be listed
for a directions hearing by anyone prior to the acceptance of any
such application by the Tribunal. Rather, you should ask the
Tribunal's District Registrar in Brisbane to notify you immediately
upon receipt of such an application so as to enable your client to
then seek a directions hearing to deal with the matter. Such an
application would be directed to the Tribunal which was constituted
to hear the substantive matter."

Later on that same day a further letter was received by the Registrar from the Australian Government Solicitor requesting that the "matter" be listed "for mention before the Tribunal at the first available opportunity....". I reproduce that letter also in its entirety so far as relevant matters are concerned.

"I refer to my earlier letter this morning. I have received
confirmation from the Applicant's Solicitors that they have this
afternoon filed a Notice of Withdrawal in your Registry.
Would you please list this matter for mention before the Tribunal
at the first available opportunity, referring my letter of this
morning to the members of the Tribunal....."

11. On the afternoon of Wednesday 27 May, the District Registrar of the Queensland Registry of the Administrative Appeals Tribunal, Mr Barry Larsen, received a letter from Messrs Corrs Chambers Westgarth advising that "in response to recent commercial developments our client has elected to withdraw its application for review....". The letter was accompanied by a "Notice of Withdrawal", no precedent for which was available in the Schedules to the Administrative Appeals Tribunal Act. The terms of those documents will now be reproduced.

"We act for the abovenamed applicant Queensland Nickel Management
Pty. Ltd.
In response to recent commercial developments our client has elected
to withdraw its application for review (No. Q90/474) - the appeal) to
the Administrative Appeals Tribunal.
We note the Administrative Appeals Tribunal Act makes no provision
for the method to be employed in withdrawing the Application and the
Tribunal's General Practice Direction is also silent on the point.
This letter therefore and the accompanying notice serves to advise
you that our client hereby withdraws its application for review no.
Q90/474. We would be grateful if you could bring this notice to the
attention of the tribunal as soon as possible."
"ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
No. Q90/474
RE: DALLHOLD NICKEL MANAGEMENT PTY LTD
Applicant
AND: GREAT BARRIER REEF MARINE PARK AUTHORITY
Respondent
AND: TOWNSVILLE PORT AUTHORITY
NORTH QUEENSLAND CONSERVATION COUNCIL
MR JOHN C. COLLINGWOOD AS REPRESENTATIVE OF THE
SAUNDERS BEACH ACTION GROUP
QUEENSLAND COMMERCIAL FISHERMEN'S ORGANISATION
THE STATE OF QUEENSLAND
Parties Joined
TAKE NOTICE that the applicant, QUEENSLAND NICKEL MANAGEMENT

PTY.
LTD. (FORMERLY DALLHOLD NICKEL MANAGEMENT PTY. LTD.) hereby

withdraws its application No. Q90/474 for review of the decision of
the respondent GREAT BARRIER REEF MARINE PARK AUTHORITY.
DATED this 27th day of May 1992."

12. A perusal of this documentation will readily reveal that uncertainty is perceived to exist as to the right of an applicant to discontinue by unilateral withdrawal proceedings which he/she/it commences before this Tribunal.

13. At 8.45 this morning I conducted a Telephone Directions Hearing in order to give the parties a proper opportunity in a forum other than the pages of the Townsville Daily Bulletin Newspaper to identify their respective positions in respect of the applicant's purported withdrawal of its application for review.

14. I have had a transcript made of this morning's telephone proceedings. By reference to that transcript I now present the flow of those proceedings.

"Dep. President: Good morning gentlemen. I have Professor Christie
with me and I hold an authority or delegation from Justice Gray, the
Presiding Member, pursuant to section 33(2)(b). Mr Wall, your people
asked for this directions hearing, what do you want to say?
Mr Wall: Well we want to be heard on whether -
Dep. President: Oh, I have read that in the paper Mr Wall - so say
what you have to say.
Mr Wall: Well, is this a directions hearing or is this the hearing
of our opposition to the applicant's intention to withdraw?
Dep. President: Well, your instructing solicitors asked for a
directions hearing, Mr Wall.
Mr Wall: We asked to be heard on the matter, Mr Breen and if - we
oppose any intention by the Tribunal to deal with the matter by way
of a directions hearing in camera and not in public. We oppose a
private hearing of a matter such as this. We wish to be heard like
any party on an application relating to a matter such as this.
Dep. President: Well, we have merely responded to your instructing
solicitor's letter of Wednesday last week.
Mr Wall: Well, what we wish for, Mr Breen, is that the Tribunal set
a date to hear an application by the Marine Park Authority that the
applicant - that there is no power for the applicant to withdraw the
application. If there is a power to withdraw, it is too late to do
so now in the present case. Further, if there is a power to
withdraw, it is subject to there being no resulting prejudice to
other parties. We would be submitting that there is in this case,
and finally if there is a power to withdraw leave is first required
and we seek to argue those matters publicly.
Dep. President: Well, perhaps I had better, before going any
further, correct a considerable error in your early statements. This
proceeding is not in camera. It is not a private hearing.
Mr Wall: Well, at the moment it's a directions hearing in camera. I
mean the public -
Dep. President: Who said it's in camera? It is only in camera if a
direction to that effect is made under the statutory power.
Mr Wall: Well, with respect, Mr Breen, it's an in camera hearing -
Dep. President: Mr Wall -
Mr Wall: The public has no access to what is being said at the
moment.
Dep. President: Mr Wall - well they have had plenty of access to
private statements in the media.
Mr Wall: Well, I'm not responsible, with respect, for private
statements in the media, Mr Breen.
Dep. President: I'm not suggesting you are.
Mr Wall: All the Marine Park Authority requests in this case is that
the issue of whether the applicant can in effect silently withdraw
this appeal, after millions of dollars have been spent of public
money, whether it can do that as it has purported to do or whether
in fact the Administrative Appeals Tribunal has power to control the
means by which proceedings are terminated. Now, we are fully aware
of cases like Eastman, Stevenson, Tabone and Abbott and Storrie
and Nicholson and the like, but notwithstanding what appears to have
become a practice in the Administrative Appeals Tribunal, it is
still our submission that there is no power to withdraw but if there
is it is a controlled power.
Dep. President: Yes, well, what exactly are you asking that we do?
Mr Wall: All we are asking the AAT is that it be set for the hearing
of this matter.
Dep. President: The hearing of what, the applicant's application to
withdraw?
Mr Wall: No, our opposition to that taking place.
Dep. President: Well, what do you suggest should be the forum? What
do we do, all return to Townsville?
Mr Wall: We don't suggest that. We are happy to come to Brisbane.
Dep. President: Relist what -
Mr Wall: Sorry?
Dep. President: Do you want us to relist the hearing of the matter?
Mr Wall: Yes, yes, I mean - what do you suggest, with respect, Mr
Breen, happen now - that it just go away - silently slip into the
never-never?
Dep. President: Oh, no.
Mr Wall: As if the appeal in Townsville had never occurred?
Dep. President: No, I have got some things in mind, Mr Wall.
Mr Wall: I'm sorry?
Dep. President: I've got some things in mind and I certainly won't
be doing that. I am surprised you'd even think that I might do that.
Mr Wall: Well, we are happy to go to Brisbane, Sydney, Melbourne
wherever it is most convenient to the Tribunal and those other
parties who wish to be heard.
Dep. President: I see. Well let's see who - if anyone else wishes to
be heard.
Mr Kay: Yes, Mr Breen. The fishermen want to be heard because we
feel we should get an opportunity to oppose the withdrawal.
Dep. President: You want to oppose. Alright.
Mr Kay: The fishermen did meet last week - the whole 26 state
councillors on this matter -
Dep. President: That's OK, Mr Kay, you don't have to justify your
position - just identify it for the moment.
Mr Kay: Yes.
Dep. President: And you have done that. Mr Fellowes, are you on the
line?
Mr Fellowes: Yes, Mr Deputy President.
Dep. President: What is your position.
Mr Fellowes: The Port Authority takes the view that the matter is
effectively at an end. It will - it neither supports nor opposes
what the Marine Park Authority wishes to do. To the extent that we
would be involved in any hearing it would simply be to protect the
interests of the Port Authority. We are happy to be co-operative in
whatever arrangements are to be made.
Dep. President: Mr Riethmuller?
(MR RIETHMULLER IS COUNSEL FOR THE SAUNDERS BEACH ACTION

GROUP AND

THE NORTH QUEENSLAND CONSERVATION COUNCIL.)
Mr Riethmuller: Mr Deputy President, the position of both my clients
is that they support the application or the position of GBRMPA.
However, on a hearing of the matter I expect that if it were to be
away from Townsville they would be happy to simply concur with
submissions made by Mr Wall.
Dep. President: Yes, alright. Mr Plunkett?
Mr Plunkett: The position of the State of Queensland is that
Queensland Nickel Management has properly exercised its rights in
electing to objection to this course of action. The State does not
support further prolongation of this matter by way of any further
directions hearing. The State submits that the matter has now been
closed and that all proceedings have been terminated already.
Dep. President: I see. Well, Mr Gore?
Mr Gore: Good morning, Mr Breen.
Dep. President: Good morning.
Mr Gore: Mr Breen, obviously it's the applicant's primary contention
that the withdrawal has been effective but if the Marine Park
Authority and other parties wish to contest the taking of that step
then obviously arrangements need to be made or verification in that
regard to be heard. I should add that probably for completeness we
would file material to support the grant of leave to withdraw should
the Tribunal take the view, contrary to the authorities to date,
that leave is required - so there is probably in the first place an
application by the Marine Park Authority. If that application was
unsuccessful that would be the end of the matter. If that
application was successful then our application for leave would need
to be heard. But as a matter of convenience probably the two
applications should be heard at the one time.
Dep. President: Yes, alright. Well the principal reason for getting
this gathering together as speedily as we did and to do so by use of
the telephone as against written notice to advise people of the
arrangement of it for 8.45 this morning was to kill this spectre of
public comment by people as to what should be done and how it should
be done. The contempt that has been shown to this Tribunal from day
one of this hearing is quite staggering to me. I'll give a ruling on
all of this at 2.30p.m. in Hearing Room 2. Those of you who are in
the country should arrange for town agents to be present. Hearing
Room 2 is on the 20th level of the Commonwealth Courts Building,
294 Adelaide Street, Brisbane.
Mr Wall: And when do you propose to do that, Mr Breen?
Dep. President: 2.30 this afternoon.
Mr Wall: Well, that's just great if one is in Townsville and other
places but anyway we've made our point.
Dep. President: Well, at 2.30 this afternoon I'll announce where we
are going from here.
Mr Wall: Right, thank you.
Dep. President: You only need someone here who can absorb some
simple expressions of the English language and then use a telephone
to tell you what the result was.
Alright, thank you."

15. Since first becoming aware of the need for today's proceedings, it has been my intention to reserve delivering the outcome of this morning's telephone proceedings until 2.30 this afternoon and to deliver that outcome by a personal presentation of it in a Hearing Room. By Section 35 of the Administrative Appeals Tribunal Act, the hearing of proceedings before this Tribunal are required to be in public except in special circumstances which the section goes on to define. None of those circumstances could even be suggested to be applicable in the present instance. The public has a right to learn in the proper place and in the proper way the detail of proceedings before this country's Tribunals of Law. Mr Wall's comments this morning about secrecy are a nonsense made without regard to the provisions of a fairly simple statutory provision, namely Section 35.

16. I have considered the proceedings on the telephone this morning and have weighed the various statements made by the parties in consultation with my colleagues Justice Gray and Dr Christie.

17. As I indicated to the parties this morning I hold from Justice Gray an authority pursuant to paragraph (b) of subsection 33(2) of the Administrative Appeals Tribunal Act to conduct this morning's proceeding.

18. The direction that I make with the approval of my colleagues is that the hearing of application for review Q90/474 be reconstituted and resume in the Hearing Room on Level 2 of the Family Court of Australia at 10 a.m. at Townsville on the morning of Tuesday 23 June 1992.

19. I consider the Tribunal bound by the requirements of natural justice to give to the respondent in such a forum the opportunity which, by its correspondence and then through its Senior Counsel Mr Wall, QC this morning in the course of the Telephone Directions Hearing, it has sought.

20. I can indicate now that proceedings on that day will be limited to matters flowing from the purported withdrawal by the applicant of its application for review. I am authorised by my colleagues to indicate on behalf of the Tribunal that any party not wishing to appear on that day - some have indicated that they neither consent to nor oppose the withdrawal - is under no obligation of law or courtesy to attend.

21. The reason for the resumption in Townsville of the matter is the same as that which originally determined Townsville to be the venue for the hearing. Townsville-based parties and interested Townsville citizens should not be precluded by distance from having an opportunity to attend.