BREWER -v- O'SULLIVAN [2016] WASC 275 (19 July 2016)

2 There are two applications before the Court today. The first is an application for an order that the second respondent file and serve an affidavit setting out the process by which the decision the subject of ground 3 of the judicial review application (the Decision) was reached, or, alternatively, an order that the second respondent file and serve an affidavit annexing all documents received and considered, used or created in relation to the Decision. An order of the latter kind is, in effect, an order for discovery. Although the second respondent has filed a notice of intention to abide by the Court's decision in respect of the judicial review application, the second respondent does not oppose the making of an order in either form. The fourth respondent opposes the application. The fourth respondent's position, in effect, is that orders of the kind sought are unnecessary for reasons I will explain in a moment.

3 The second application is brought by the Attorney General for Western Australia who seeks leave to intervene in these proceedings, in order to make submissions in respect of ground 3 of the judicial review application.

4 For the reasons which follow, I am persuaded that an order should be made that the second respondent file and serve an affidavit setting out the process by which the Decision was reached. In those circumstances, it is unnecessary to make an order for discovery by the second respondent. In addition, I am persuaded that this is a case in which it is appropriate to permit the Attorney General to intervene.

The application for an order that the second respondent file an affidavit explaining the decisionmaking process

5 This application related solely to the third ground of review. In order to understand the basis for the application, it is necessary to say something about ground 3 itself.

6 The applicants added ground 3 to the grounds of review after filing the judicial review application in May 2016.

7 Ground 3 contends that the second respondent made a jurisdictional error in considering applications for exemption for particular mining leases (the exemption applications) by identifying a wrong issue; asking the wrong question; ignoring a relevant consideration or taking into account irrelevant considerations; or erred in law, by adding together all of the expenditure reported on the operations reports for all of the tenements in the relevant combined reporting group. The applicants contend that under the Mining Act 1978 (WA) s 102(2a)(b) and the Mining Regulations 1981 (WA) reg 58A(2), the second respondent was only permitted to add together exploration expenditure shown in each relevant operations report for the tenements in the combined reporting group, and, relevantly, the second respondent was not entitled to include any amounts expended on rent, rates, administration or overheads in each operations report in order to ascertain the 'aggregate exploration expenditure'.

8 Counsel for the applicants submits that it is possible to infer from the limited information that is publicly available that particular expenditure must have been taken into account by the decisionmaker in determining the exemption application. The applicants contend that if those items of expenditure were in fact taken into account, they should not have been, having regard to the proper construction of the legislation. However, counsel submits that that is only a matter of inference, based on the information that is publicly available.

9 The question of what expenditure can properly be taken into account for the purpose of a decision whether to grant an exemption from the expenditure requirements under the legislation is one of wider significance beyond the parties to these proceedings.

10 Having regard to the submissions of counsel, it appears that it is contemplated that the affidavit sought from the second respondent would set out with precision what matters were taken into account by the decisionmaker and would explain how the Decision was reached, although it is not envisaged that the affidavit would effectively constitute a statement of reasons. What such an affidavit would do, however, is eliminate any uncertainty as to what matters were taken into account and avoid the need for the Court to have to endeavour to infer what matters were taken into account by the decision-maker in making the Decision.

Why it is appropriate for the decision-maker to provide the affidavit sought

11 It is clearly desirable that the Court proceed on the basis of accurate information as to the basis for a decision the subject of an application for review. I am satisfied, having regard to the submissions of counsel for the applicants, which helpfully set out the relevant authorities,[1] that the Court does have the power to order that any person file an affidavit as to facts material to a challenged decision.[2] The fourth respondent did not contend otherwise.

12 However, counsel for the fourth respondent submitted that an affidavit of the kind sought is unnecessary. He submitted that it is possible for the Court to infer what matters were taken into account by the decisionmaker and, consequently, it is not necessary for the Court to have further information in relation to the decisionmaking process. Counsel for the fourth respondent did not contend that the provision of an affidavit of the kind sought would give rise to any prejudice to his client.

13 I am not persuaded by the observations advanced by the fourth respondent that the Court should not order the second respondent to file an affidavit of the kind sought, in circumstances where the Court has the power to order it to be provided and there is no objection by the second respondent to the order being made. This is a situation where, in my view, certainty is preferable to inference in relation to the matters which were taken into account by the decision-maker.

14 A further reason why, in my view, it is appropriate to have an affidavit of the kind sought is that the Court does not know what arguments of construction might be advanced by the parties in relation to the legislative provisions in question. It is desirable that the Court know, with as much certainty as possible, the decisionmaking process so as to avoid the risk of any application for an adjournment of the final hearing because of the need to clarify factual issues which might arise in relation to the decisionmaking process.

15 The fourth respondent referred to the fact that there was no factual issue in dispute in relation to ground 3 and indicated that the fourth respondent would be willing to accept that certain expenditure items were taken into account. The difficulty with that course seems to me to be that the fourth respondent cannot itself say what the second respondent did or did not take into account in determining whether to grant an exemption, but could, at best, only indicate that it did not dispute the drawing of certain inferences based on the currently available material.

16 The fourth respondent also appeared to be concerned that the application was directed to 'fishing' for possible further grounds of review. The answer to that contention, in my view, is that the amendment of the grounds of review would require an application to the Court for leave to amend.

17 Given the breadth of the terms of ground 3, I do not apprehend any real risk of any delay in the hearing of the application for judicial review due to the provision of this further affidavit.

18 The final matter to which I should refer is a concern raised by counsel for the fourth defendant that the provision of an affidavit of the kind described by the second respondent might, in some way, contravene the principle identified by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[3] The Hardiman 'principle' to which counsel was referring was the observation made by the Court that if a decisionmaker becomes a protagonist in a proceeding to challenge the validity of one of its decisions and actively engages in the defence of its decision, that would risk endangering its impartiality and potentially give rise to an issue of apprehended bias on its part.[4] However, that observation in Hardiman does not operate as a prohibition on a decisionmaker participating in a review of decision. The Court in Hardiman noted that if a tribunal were to participate in a hearing before the Court, its participation should, in general, be limited to submissions as to its powers and procedures so as to avoid any partisan appearance in that participation.[5]

19 Other than in the circumstance where the Court is asked to order a decisionmaker to file an affidavit as to the facts, it will ordinarily be up to a decisionmaker to determine whether to participate in an application for judicial review of its decision. In order to avoid any risk of apprehended bias, it is very common for decision-makers to simply abide the decision of the Court. But in a case where the Court does not have adequate information in relation to the decisionmaking process which applied to the decision under review, and the applicant is unable to provide that information, it may be appropriate for the decisionmaker to provide such information to the Court in the form of an affidavit. In those circumstances, it is difficult to see how such an affidavit, which merely identifies the decisionmaking process itself, could give rise to any apprehension of bias on the part of the decision-maker. The obligation on a decisionmaker to assist the Court to understand its process sufficiently to be able to determine a judicial review application has been referred to in the authorities including Johnson v Director of Consumer Affairs Victoria[6] and Mahenthirarasa v State Rail Authority of New South Wales (No 2).[7] In Eclipse Resources Pty Ltd v McNamara, Chief Executive Officer, Department of Environment and Conservation [No 2],[8] Corboy J also recognised that a decisionmaker has a duty of candour to the Court and, in some circumstances, must reveal why a challenged decision was made.

20 The participation by a decisionmaker in a judicial review application, by way of providing the Court with evidence of the factual material which relates to the decision in question, is not a novel course. There have been cases in this jurisdiction where that course has been adopted.

21 In all the circumstances, I am satisfied that an order should be made that the second respondent file and serve an affidavit setting out the process by which the Decision was reached.

22 Turning to the application by the Attorney General for leave to intervene in these proceedings, this application was not supported by an affidavit, but counsel for the Attorney General made clear that, effectively, the considerations relied upon were the same as those that I took into account in Australian Livestock Suppliers Pty Ltd v Minister for Mines and Petroleum.[9] The basis for the Court's power to permit intervention by a nonparty was set out in my reasons for decision in that case.[10] It is unnecessary to repeat those reasons for present purposes.

23 I am satisfied that this is an appropriate case for intervention by the Attorney General, for the same reasons as I outlined in Australian Livestock Suppliers,[11] but with two important differences. The first is that unlike Australian Livestock Suppliers, this is not a case in which the decisionmaker is abiding the Court's decision. The decisionmaker intends to participate by providing the affidavit discussed above. However, given that the decisionmaker does not intend, as I understand it, to make any submissions in relation to issues of construction of the legislation, the present case is relevantly on all fours with that aspect of Australian Livestock Suppliers.[12]

24 Secondly, and more importantly, this is not a case like Australian Livestock Suppliers where, but for the Attorney General's intervention, the Court would have no contradictor to assist in respect of the construction arguments.[13] The fourth respondent clearly intends to have that role. That calls into question whether it is necessary for an additional party to be permitted leave to participate to assist the Court. In my view, it is appropriate to permit intervention by the Attorney General in this case because the issues raised by ground 3 of the grounds of review are potentially of wider significance beyond the parties to these proceedings. There may be some advantage in the Attorney General being permitted to participate in the event that alternative ways of construing the legislation might bear upon cases beyond this one, in which case the intervener may be able to assist the Court to understand the full circumstances of the operation of the legislation.

25 One thing that has concerned me about the application for leave to intervene is that, the intervention of an additional party might add to the time involved in dealing with the application for judicial review. However, that concern has been ameliorated by virtue of the fact that the parties have agreed to the Attorney General's participation and have agreed as to costs. Furthermore, the relatively confined scope of the likely issues of construction suggests that any intervention by the Attorney General is not likely to unduly add to the overall length of the proceedings and the burden of any additional time taken is likely to be outweighed by the benefit of the submissions made by an additional party in relation to the proper construction of the legislation.

26 In those circumstances, I will make an order that the Attorney General have leave to intervene.

[1] Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282 [92] [93] (Buss JA); Minister for Home Affairs of the Commonwealth v Zentai [2012] HCA 28; (2012) 246 CLR 213 [94] (Heydon J).

[2] Rules of the Supreme Court 1971 (WA) O 56 r 5(2)(c).

[3] R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13.

[4] R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35 36 (Gibbs, Stephen, Mason, Aickin & Wilson JJ).

[5] R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 36 (Gibbs, Stephen, Mason, Aickin & Wilson JJ).

[6] Johnson v Director of Consumer Affairs Victoria [2011] VSC 595 [74] (Kyrou J, as his Honour then was).

[7] Mahenthirarasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201; (2008) 72 NSWLR 273 [16] [25] (Basten JA, Giles & Bell JJA agreeing).

[8] Eclipse Resources Pty Ltd v McNamara, Chief Executive Officer, Department of Environment and Conservation [No 2] [2012] WASC 264 [82] (Corboy J).

[9] Australian Livestock Suppliers Pty Ltd v Minister for Mines and Petroleum [2015] WASC 359.

[10] Australian Livestock Suppliers Pty Ltd v Minister for Mines and Petroleum [2015] WASC 359 [2] [3].

[11] Australian Livestock Suppliers Pty Ltd v Minister for Mines and Petroleum [2015] WASC 359 [5] - [9].

[12] Australian Livestock Suppliers Pty Ltd v Minister for Mines and Petroleum [2015] WASC 359 [5].

[13] Australian Livestock Suppliers Pty Ltd v Minister for Mines and Petroleum [2015] WASC 359 [6].