BHP Billiton Ltd v NSW Department of Primary Industries [2007] AATA 1507 | Case summary

REASONS FOR DECISION 1 BHP Billiton Ltd ("BHP") has applied under section 53 of the Freedom of Information Act 1989 ("the FOI Act") for review of a determination of the Department of Primary Industries ("the DPI") granting access to extracts of an Expression of Interest ("the EOI") prepared by BHP in respect of the awarding of an exploration licence for the Caroona Coal Exploration Area (""the exploration licence). The EOI was prepared in response to an invitation by the Minister for Mineral Resources ("the Minister"). Coal Mines Australia Pty Limited, a wholly owned subsidiary of BHP, was subsequently successful and awarded the exploration licence. 2 The Environmental Defender's Office ("the EDO") on behalf of Caroona Coal Action Group Inc (CCAG') applied to the DPI under the FOI Act, seeking information in relation to the decision by the Minister to grant the exploration. BHP objected to the release of the EOI on the grounds that it is exempt as a document pursuant to clause 7 of Schedule 1 to the FOI Act. The DPI granted CCAG partial access to the EOI. BHP subsequently commenced these proceedings in the Tribunal to prevent CCAG being granted partial access to the remainder of the document. BHP contends that the remaining portions are exempt from disclosure. 3 On 12 June 2009 the EDO, on behalf of CCAG, lodged an application under section 67(4) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") to be joined as a party to these proceedings. CCAG submits that by virtue of its status as an access applicant under the FOI Act, it is a party that ought to be joined to the proceedings or, in the alternative, that its joinder is necessary to the determination of all matters in dispute. 4 The DPI neither consents to not opposes CCAG's application. BHP opposes the application. 5 Section 67(4) of the ADT Act provides: 67 Parties to proceedings before Tribunal ... (4) The Tribunal may, by order, make a person who is not a party to proceedings (other than proceedings on an internal appeal) a party to the proceedings if the Tribunal considers that the person ought to have been joined as a party or is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings. ... CCAG's arguments 6 Ms Millner, solicitor for the CCAG, argues that section 67(4) of the ADT Act must be read in accordance with the objects of the ADT Act, which are contained at section 3. Section 3 relevantly provides: 3 Objects of Act The objects of this Act are as follows: (a) to establish an independent Administrative Decisions Tribunal: (i) to make decisions at first instance in relation to matters over which it is given jurisdiction by an enactment, and (ii) to review decisions made by administrators where it is given jurisdiction by an enactment to do so, and (iii) to exercise such other functions as are conferred or imposed on it by or under this or any other Act or law, (b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair, (c) to enable proceedings before the Tribunal to be determined in an informal and expeditious manner, ... 7 Ms Millner submits that a person who 'ought to have been joined' as a party to the proceedings is a person whose rights or liabilities will be directly affected by orders made. Pegang Mining Company Ltd v Choong Sam [1969] 2 MLJ 52, (Lord Diplock); Rickard Constructions and Anor v Rickard Hails and Moretti and Ors [2004] NSWSC 1041 at 79; News Limited v Australian Rugby Football Limited (1996) 64 FCR 410. Rickard Constructions related to an application for joinder under the Uniform Civil Procedure Rules 2005, which are in relevantly similar terms to section 67(4) of the ADT Act. 8 She points to section 16 of the FOI Act as a source of the right of CCAG to access to the documents. Section 16 states: 16 Right of access to agencies' documents

(1) A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act. 9 Ms Millner contends that the outcome of the matter before the Tribunal's will affect the right of CCAG to access to the documents that it sought under the FOI application. She says that this right warrants joinder of CCAG in these proceedings and that unless the CCAG is joined as a party, its interests will not be represented before the Tribunal. 10 Ms Millner relies on the decision Dunn v Energy Australia & Anor [2006] NSWADT 288, in which Pearson JM accepted that that as an applicant's access to documents may be limited by the reviewable decision, an access applicant under the FOI Act had an interest that would be affected by the reviewable decision. The Judicial Member was satisfied that the interests of the access applicant are affected by the reviewable decision, and ordered that he be joined to the proceedings. She stated at paragraph 9: "… The reviewable decision affects the interests of the access applicant by limiting his access to the document. His interests are, therefore, affected by the reviewable decision." 11 It is not in dispute that Dunn v Energy Australia Pearson JM dealt with a provision that has since been repealed and replaced. The then section 67(4) of the ADT Act provided: "(4) The Tribunal may, by order, make a person who is not a party to proceedings for: (a) an original decision, or (b) a review of a reviewable decision, or (c) an external appeal, a party to the proceedings, either of its own motion or on the written application of the person, if the Tribunal is satisfied that the interests of the person are likely to be affected by the original decision or are affected by the reviewable decision or the decision that is the subject of the external appeal." 12 The amended section 67(4) was introduced by the Administrative Decisions Tribunal Amendment Act 2008 and came into force on 1 January 2009. There are no authorities that have considered the amended section. 13 However, Ms Millner also referred to comments in regard to joinder applications made pursuant to s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) by Deputy President Walker in Einfeld and Human Rights and Equal Opportunity Commission [2007] AATA 1507 who stated at paragraph [30] of the decision: That party initiated the FoI request and is the person who seeks access. The decision under review specifically affects the party's request. That person has an interest in upholding the decision under review and will be prejudiced if the appeal applicant succeeds. … 14 Ms Millner contends that the amended section 67(4) broadens the Tribunal's power to join a person as a party to proceedings. In support of that submission she referred to the following comments by the Hon. John Hatzistergos, Attorney General, Minister for Justice, and Minister for Industrial Relations, in the Second Reading Speech on the introduction of Administrative Decisions Tribunal Amendment Bill 2008 on 24 September 2008: Section 67 (4) will be amended to give the tribunal a broader power to join a person as a party to the proceedings if necessary. … 15 Ms Millner submitted that this comment is relevant to the interpretation of section 67(4) of the ADT Act. 16 Ms Millner further submitted that the interests of CCAG in these proceedings are different to those of BHP and the DPI and cannot be adequately presented to the Tribunal by either of those parties and that CCAG wishes to perform the role of contradictor. She relies on Einfeld at paragraph [47] in support of her submission that this is a factor that weighs in favour of allowing joinder. BHP's arguments 17 BHP opposes CCAG's application. It submits that CCAG should not be joined as a party to the proceedings because CCAG has no right which will be affected by orders made in its absence, sufficient to warrant joinder. It further submits that CCAG should not be joined as a party as it is not necessary for the determination of any matters in dispute because: (a) there is no public interest which will be unrepresented in the proceedings in the absence of CCAG; (b) there is no procedural fairness ground for the joinder of CCAG; and (c) there is no risk of multiplicity of proceedings. 18 BHP submits that the right conferred by section 16 of the FOI Act is insufficient to warrant joinder. It relies on Johnson v Commissioner of Police, NSW Police Force [2009] NSW ADT 181 at paragraph [9] as support for its submission that CCAG does not have a legally enforceable right to access the EOI because the right to access is subject to the exemption and other restrictions under the FOI Act. 19 BHP further submits that Dunn is redundant authority and does not establish the existence of a right or interest sufficient to warrant joinder as it relates to a provision that has since been repealed and replaced. BHP submits that. It says that this amendment aligns the ADT joinder provisions with those of the Federal Court Rules, the High Court Rules and the Uniform Civil Procedure Rules. This requires that a party "ought to have been joined" or their joinder is "necessary to the determination of all matters in dispute in the proceedings. " It says that merely relying on one's status as an access applicant under the FOI Act is insufficient to warrant joinder. 20 The effect of the equivalent Federal Court joinder provision was considered in News Limited v Australian Rugby Football League Ltd (1996) 64 FCR 410. In this case, the Federal Court held that the grounds upon which a person generally ought to be joined are for: (a) convenience and expediency, in order to avoid multiplicity of proceedings; or (b) where the orders sought establish or recognise a proprietary or security interest in land, chattels or a monetary fund, or some other legal right or liability; or (c) the order directly affects the above rights or liabilities, such that it legally binds the person; and (d) the person ought to be afforded an opportunity to be heard if his rights or liabilities will be affected by the orders. 21 BHP submits that the submissions of CCAG should be rejected because: (a) the right conferred by under section 16 of the FOI Act is a limited right and does not exist in the event of an applicable exemption, as in the present case; (b) the outcome of the proceedings between BHP and the DPI will not in any way directly affect or bind a right or liability of CCAG; and (c) the DPI intends to make submissions in relation to the classification of the documents as exempt under the FOI Act. 22 BHP submits that a party ought to be joined to proceedings only in circumstances where the orders sought will directly affect a third person's rights, interests or liabilities or bind that person to any orders made by the Tribunal; and thus that person should have been afforded an opportunity to be heard to defend that right, interest or liability. This right or interest must be "'real ', 'genuine' and 'direct '. 23 BHP submits that CCAG has not demonstrated any right or liability sufficient to warrant joinder. It has also failed to establish the existence of an interest which may be affected that is sufficient to warrant the CCAG being joined as a party to these proceedings. 24 BHP submits that in order to come within the second limb of section 67(4) of the ADT Act CCAG must be found to be a 'person whose joinder is necessary to the determination of all matters in dispute. BHP submits that the joinder of CCAG would be futile, obstructive and in no way necessary to the determination of all matters in dispute in these proceedings. It says that CCAG's argument is entirely groundless and is no basis for joinder. 25 In summary, BHP submits that CCAG ought not be joined as a party to the proceedings because: (a) CCAG has no standing to commence proceedings regarding access to the disputed documents prior to all rights of appeal being exhausted by BHP under the relevant legislation and therefore, there is no risk of multiplicity of proceedings; (b) the joinder is not necessary to the determination of any matters in dispute, because the FOI Act prevents CCAG accessing the documents until BHP has exhausted all appeal rights, and thus joinder is futile; (c) CCAG has failed to establish that it has a sufficient right or interest in the proceedings, such that it "ought" to be joined to the proceedings and has relied only on its right to access the documents under the FOI Act, which is subject to the exemptions and limitations contained in that Act. (d) there is no order which could be made in the proceedings which would directly affect or legally bind any right, interest nr liability of CCAG; (e) Counsel for CCAG, in the Separate Proceedings, has obtained access to the documents pursuant to an order for discovery and joinder therein creates a real and substantial risk of disclosure and ill-informed public speculation; and (f) CCAG need not be afforded an opportunity to be heard in order to protect its rights, interests or liabilities. Discussion 26 As noted above, section 67(4) of the ADT Act provides that the Tribunal may order joinder of a party to proceedings if it considers that the person ought to have been joined as a party or is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings. 27 CCAG has referred to the decision in Dunn v Energy Australia & Anor but it is common ground that section 67(4) has been amended since that decision. There are no other authorities that directly address this issue. 28 I agree that the amended section 67(4) has altered the basis on which the Tribunal is able to join a party. It is apparent from the second reading speech that it was intended by parliament that the Tribunal have a broader power to join a person as a party to the proceedings if necessary. Nevertheless, the clear words of the section provide that a limited basis on which a party may be joined. 29 In the circumstances of this matter I agree with Ms Millner that the interests of CCAG in these proceedings are different to those of BHP and the DPI and in my view it is improbable that either of the parties will adequately present those issues. CCAG seeks the release of further documents. The DPI has an interest in upholding the decision. BHP has an interest in preventing release of further documents. Neither BHP nor the DPI has an interest in arguing the case for release of further documents. 30 It follows, in my view, for the reasons argued by Ms Millner, that joinder is necessary to the determination of all matters in dispute in the proceedings. This is consistent with the fourth News Limited principle referred to above. 31 Having formed this view, it is not necessary that I consider the other issues raised by the parties. Order

Caroona Coal Action Group Inc is joined as a party to these proceedings.
The matter is to be listed for a further planning meeting at 12.30pm on 19 January 2010.

BHP Billiton Ltd v NSW Department of Primary Industries

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