(3) Did Adani make a representation to the Tribunal that was dishonestly misleading?
201 The third question posed above (at [150]) involves five underlying questions (see at [151] above). I will consider those five questions in order.
202 The first question is: Was the EIS materially different to the expert reports submitted to the Land Court? In support of this question being answered in the affirmative, Mr Burragubba provided the particulars set out above (at [133(d) and (e)]). Those particulars (particularly (e)) compare the figures set out in the EIS and those in the two Fahrer reports insofar as both relate to the employment impacts of the Carmichael project and the gross regional and State income increases that it is likely to produce.
203 A superficial comparison of those figures shows that they do, indeed, provide very different estimates of those features of the Carmichael project. However, the critical issue raised by this question is not whether those estimates are different, even very different, but rather whether they are materially different. The ordinary meaning of the word "materially" is: "to an important degree, considerably" (Macquarie Dictionary, 4th ed). However, in this context, I consider the expression "materially" conveys more. That is, I consider it has a similar meaning to that of the expression "material facts" in pleading terminology. Specifically, the facts that define the nature of the case alleged against the opposite party and those facts necessary to establish the essential elements of the moving party's case: see Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at [13]-[15] per Lindgren J. Applied to the differences at the centre of this question, that therefore means a difference that, to an important or considerable degree, redefined the nature of the case Adani put before the Tribunal, or that so affected one of the essential elements, or components, of that case, that Adani could reasonably have been expected to disclose it to the Tribunal.
204 To understand whether these differences have that character, it is first necessary to define the essence of the case Adani put before the Tribunal on this economic issue and then to ascertain how, if at all, these two sets of economic materials - the economic section of the Executive Summary to the EIS and the two Fahrer reports - affected that aspect of Adani's case. In that exercise, it is appropriate to begin by identifying what relief Adani was seeking from the Tribunal. The short answer to that question is a determination under s 38 of the NTA. That is, a determination as to whether the "act" in question must not be done, or may be done, and, if the latter, whether with or without conditions. However, to identify how the economic issue arose with respect to that determination, it is necessary to examine the other pertinent provisions of the NTA and the proceedings before the Tribunal in more detail.
205 The "act" in question was the grant of the two mining leases to Adani, as described in the notice that the State issued under s 29 of the NTA. As can be seen from the content of that notice (see at [11] above), the two mining leases covered an area of slightly more than 185 square kilometres and the term of those leases was not to exceed 30 years "with the possibility of renewal for a term not exceeding 30 years". It is also important to note that the "act" was limited to the grant of the two mining leases; it did not include a grant for the purpose of constructing an infrastructure facility associated with mining (see s 26(1)(c)(i)), nor did it include any grant for the purposes of the rail project associated with the Carmichael mine. The Tribunal appeared to be alert to this distinction because it noted that, although the figures provided by Adani related to the whole project, "the benefits to the project will be experienced in the area of the proposed leases" (Reasons [108] - see at [119] above). Finally, it is to be noted that, in making its determination, the Tribunal was required to consider the criteria set out in s 39 of the NTA (see at [28] above). The particular criterion that raised this economic issue was that in s 39(1)(c) of the NTA: "the economic or other significance of the act to Australia, the State … concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area."
206 In the course of submitting its statement of contentions and supporting material in accordance with the Tribunal's directions (see at [27] above), Adani made use of the economic section of the Executive Summary to the EIS. In doing so, it claimed that the grant of the two mining leases "will have highly significant positive economic impacts on the country, the State and the local region" (see at [29(3.52)] above). It then provided a series of figures in support of that claim which had obviously been extracted from the economic section of the Executive Summary to the EIS (see [29(3.53-3.55)] above). They included the contentious employment figures that are mentioned in the Tribunal's Reasons (see Reasons [103] at [117] above) and also appear in the first of the particulars that Mr Burragubba has provided in support of this ground (see paragraph (e)(i)(A) at [133] above). It follows that the essence of the case that Adani put to the Tribunal in relation to the economic significance of the project raised by the criterion in s 39(1)(c) was that the act of granting the two mining leases would have a highly significant positive economic effect for the purposes of that criterion.
207 Next, it is necessary to turn to Dr Fahrer's two reports to ascertain what effect, if any, they may have had on this aspect of Adani's case before the Tribunal. It is appropriate to begin, however, with the Joint Report that preceded, and was the catalyst for, those two reports. It is apparent from the terminology used in the particulars Mr Burragubba provided (at [133(d)] and [133(e)] above) that he has focused on two particular paragraphs of that Joint Report. The words "likely to have over-estimated the economic benefit of the project" appear to have come from paragraph 106 of the Joint Report (see at [63] above); and the words "insight into the financial viability or economic efficiency of the Carmichael Project" appear to have come from paragraph 103(b) (see also [63] above).
208 It can be seen from his comments beside those paragraphs in the Joint Report that Dr Fahrer essentially agreed that a CGE analysis and a CBA analysis, respectively, would provide more accurate estimates of these aspects of the Carmichael project. Nonetheless, his agreement to the former was qualified by the following statement: "It is likely to have overestimated the employment benefits, however it is unclear to what extent output and income impacts are overestimated." These issues and all the other matters raised in the Joint Report were examined and rejected by Dr Fahrer in his two subsequent reports, particularly his Second Report. The terms of that rejection are set out above (at [75]-[76]), although it should be noted that he did not there specifically address the employment benefits of the project. The details of that rejection emerge from a consideration of Dr Fahrer's two reports as follows.
209 Both of Dr Fahrer's reports were directed to the "Carmichael Coal and Rail Project" (see at [66] and [68] above). Together, they considered "whether any good reason had been shown for a recommendation that the application [to grant the two mining leases] be refused pursuant to s 269(4)(l)" (see at [69] above). The negative strains in this statement are explained by the specific criterion in s 269(4)(l) of the Minerals Act to which Dr Fahrer's reports were directed: "any good reason has been shown for a refusal to grant the mining lease" (see at [90] above). As is already mentioned above in his two reports, Dr Fahrer used two different methods of evaluation: a CGE model and a CBA model.
210 Both reports state that the headline results of the CGE modelling was that the Carmichael project "will result in significant real income gains for Australians in general and Queenslanders in particular" (see at [67] above). This conclusion removed any equivocation that may have been expressed by him in the Joint Report. As well, in the concluding summary to his Second Report, Dr Fahrer opined that "[t]he analysis in this report shows that the economic benefit of the Carmichael Project is very large" (see at [89(218)] above). He further opined that "[t]he CGE analysis shows a highly positive economic impact on incomes in the [Mackay] region, Queensland and Australia. In Queensland, real incomes will rise between $18.6 billion and $22.8 billion, in real present value terms" (see at [89(219)] above). And finally he opined that "[t]he conclusion that the benefits of the Project well exceed its costs does not change even if much lower coal prices, much lower coal volumes and much higher environmental costs are assumed" (see at [89(222)] above).
211 It can therefore be seen that the overall effect of the results of the analyses conducted by Dr Fahrer and the opinions expressed by him in his two reports was that the Carmichael project would have a highly positive and significant benefit for Australia, the State of Queensland and the Mackay region of the State. This conclusion is almost identical to the case Adani put to the Tribunal in its contentions on the criterion in s 39(1)(c) using the economic section of the Executive Summary of the EIS for support. As noted above, that contention was to the effect that the Carmichael project "will have highly significant positive economic impacts on the country, the State and the local region" (see at [206] above).
212 The figures stated in the EIS were undoubtedly different from the figures stated in Dr Fahrer's second report, particularly with respect to the employment benefit of the Carmichael project (see at [82] above). However, with respect to the criterion in s 39(1)(c) (which does not specifically mention employment benefit) and the economic significance of the "act", namely granting the mining leases, the ultimate conclusions expressed in both sets of economic materials were almost identical. That being so, I do not consider that, at the time Adani submitted the EIS to the Tribunal, it had in its possession material, namely the Joint Report and the two reports of Dr Fahrer, that were materially different from the conclusions in the EIS. That is to say, I do not consider Dr Fahrer's reports were such that they, to an important or considerable degree, redefined the nature of the case Adani put before the Tribunal, or to that degree affected one of the essential elements or components of that case that it could reasonably have been expected to disclose those reports to the Tribunal.
213 In essence, what Mr Burragubba has done is to concentrate on the figures set out in one part of Dr Fahrer's second report and to ignore the overall import of that report. He has also ignored the fairly obvious range of factors that were likely to explain the differences in the figures in the two sets of materials. They include the marked difference in the processes that were followed to prepare them; the differences in the underlying assumptions upon which they were based; the different methodologies that were used to produce them; and the differing criteria to which they were directed.
214 The most obvious explanation that Mr Burragubba appears to have ignored is the fact that the methodologies used to carry out the analyses in the two sets of materials were quite different. The EIS used an I-O (input/output) methodology as dictated by the Terms of Reference (see at [53(1.4.3)] above). For his part, Dr Fahrer used two different methodologies: the CGE methodology and the CBA methodology. The marked differences between, and purposes of, those methodologies have been outlined in detail above (see at [53], [77] and [81]). In broad terms, the I-O method assessed the gross effect of the Carmichael project in terms of economic output and jobs created, whereas the CGE model assessed its net effects. Thus, for example, with respect to the labour market aspects, the I-O method assumed that all jobs created by the Carmichael project would be new jobs, whereas the CGE model assumed that a proportion of the jobs created by the project would be filled by employees transferring from existing jobs.
215 Another obvious explanation that Mr Burragubba seems to have ignored is the fact that the underlying assumptions relied upon in the preparation of the economic section of the EIS and the preparation of the two Fahrer reports were markedly different. The EIS had regard to the data sources outlined at paragraph 1.4.3 (see at [53] above), it was based on the project reaching a full production level of 60 Mtpa and having an operating life of approximately 90 years (see at [55(3.2.1)] above). It was also based on the project occurring in two main stages - a construction stage and a stage leading up to and during full production (see at [55(3.2.1)] above). On the other hand, the two Fahrer reports were based upon an ultimate production level of 40 Mtpa and confined to the first 30 years of the mine's production (see at [71]-[74] above).
216 These factors provide likely explanations as to why the employment figures in these two sets of economic materials were so different. But they do not affect the broad conclusion reached in both sets of materials that the Carmichael project would have a highly significant economic benefit for Australia, Queensland and the Mackay region. It would follow that either set of materials could have been used by Adani to support its case before the Tribunal, directed to the criterion in s 39(1)(c) about the economic significance of the Carmichael project. Indeed, it is to be noted that, while the Land Court found that Adani had overstated certain elements of the financial and economic benefits of the project, that did not affect its conclusion that the application should be recommended to the Minister for granting (see at [92] above).
217 Once this conclusion is reached, the remainder of Mr Burragubba's case on this ground collapses. If the two sets of economic materials were not materially different, there is no need to examine the knowledge that Adani's officers held in relation to that non-existent material difference as required by the question outlined in [151(b)] above. There is also no need to consider the question whether the two Fahrer reports were, for that non-existent reason, deliberately withheld from the Tribunal ([151(c)]). It necessarily follows that the representation described above [151(d)] did not arise and nor was it dishonestly misleading [151(e)]. It is also unnecessary to examine the fourth and fifth questions outlined above (at [150]).
218 Nonetheless, in case this conclusion is later found to be incorrect and in deference to the detailed submissions that were provided by all parties on the issues related to the questions mentioned above, I will briefly express my views with respect to a number of them. I will deal first with the approach that should be taken to the assessment of the knowledge held by Adani's officers, Mr Haseler and Mr Manzi. On this question, I generally accept the submissions of Adani (see at [144]-[145] above) and reject those of Mr Burragubba (see at [135]-[136] above). To explain why I have come to this conclusion, it is first necessary to reiterate briefly how Mr Burragubba puts his case on this point and then to return to the High Court judgment in SZFDE. On the former, as can be seen from the outline of his contentions above (at [135]-[137]), Mr Burragubba claims that it is only necessary to make an objective assessment of the conduct of Adani's officers to determine whether it was dishonest. Specifically, whether the Fahrer reports were so material to the case Adani put to the Tribunal on the economic criterion in s 39(1)(c) that, in the circumstances, it was reasonable to expect Adani's officers to disclose those reports to the Tribunal such that their failure to do so could be said to be dishonest. He claims that this is the only assessment required and the actual knowledge held by Adani's officers about this matter is irrelevant. Having outlined how Mr Burragubba puts his case on this point, it is next convenient to turn to SZFDE.
219 In that judgment (at [9]), the High Court cited a number of its recent decisions where it had considered the different meanings given to fraud in various areas of the law. An examination of those decisions shows that, with the possible exception of the law of agency (Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160; [2007] HCA 1 at [73]-[74]) objectively assessed dishonesty is not enough, it is also necessary to establish that the person concerned knew that his or her conduct was wrong in the relevant sense.
220 In the criminal law area, that is apparent from the decision the Court cited of Macleod at [37] per Gleeson CJ, Gummow and Hayne JJ and also [100] per McHugh J and [130] per Callinan J. Each of those judgments relied, in turn, at least in part, upon the observations of Toohey and Gaudron JJ in Peters at [18], as follows:
In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest. Necessarily, the test to be applied in deciding whether the act done is properly characterised as dishonest will differ depending on whether the question is whether it was dishonest according to ordinary notions or dishonest in some special sense. If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people. However, if "dishonest" is used in some special sense in legislation creating an offence, it will ordinarily be necessary for the jury to be told what is or, perhaps, more usually, what is not meant by that word. Certainly, it will be necessary for the jury to be instructed as to that special meaning if there is an issue whether the act in question is properly characterised as dishonest.
(Footnote omitted)
221 It is worth recalling that Mr Burragubba has also relied upon that part of the judgment in Peters to support his contentions on this point set out above. In particular, he has focused on one part of the observations above, namely whether the act was dishonest according to ordinary notions, and has ignored the remainder which, in my view, makes it clear that, as well as deciding whether the act was objectively dishonest in the relevant sense, the jury must also decide whether the accused had the requisite knowledge of, or belief about, that dishonest act. In the civil law area, this approach was confirmed in the case of Krakowski, which the court cited in SZFDE as the example in the tort of deceit. In Krakowski at 576-577, the Court observed:
When fraud is alleged against a defendant, it is not enough to prove that the representation as pleaded was false. The words or conduct by which a representation is made may be understood in different senses. The words or conduct may be understood by a reasonable person in the position of the representee in one sense, by the representee in a second sense and by the representor in a third sense. Or the representee may understand the words or conduct in a sense which the representor knew the representee might understand them, albeit not in the sense in which a reasonable bystander would understand them. The differing senses in which words or conduct are understood must be borne in mind in determining whether the several elements of deceit are proved.
The sense in which a representation would be understood by a reasonable person in the position of the representee is prima facie the sense relevant to the question whether the representation is false. The sense in which a representation is understood by the representee is relevant to the question whether the representation induced the representee to act upon it. And the sense in which the representor intended the representation to be understood is relevant to the question whether the representation was made fraudulently.
(Footnotes omitted)
222 It is the last sense which is relevant to the assessment in this matter: the sense in which Adani's officer intended the alleged representation to be understood. The High Court reiterated this principle more recently in Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 at [22] per French CJ, Gummow, Hayne and Kiefel JJ where it confirmed what was said in Krakowski at 576-577 above in the following terms:
On their face, these allegations mixed two radically different and distinct ideas: that Fortescue knew that the statements were false (it had no genuine basis for making them) and that Fortescue should have known that the statements were false (it had no reasonable basis for making them). At common law the first idea is expressed in the tort of deceit and the second in liability for negligent misrepresentation. And since at least 1889 and the well-known decision of the House of Lords in Derry v Peek, it has been firmly established that a false statement, made through carelessness and without reasonable grounds for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. As four members of this Court said in Krakowski v Eurolynx Properties Ltd: "In order to succeed in fraud, a representee must prove, inter alia, that the representor had no honest belief in the truth of the representation in the sense in which the representor intended it to be understood." (Emphasis added.)
(Emphasis in original; footnotes omitted)
223 The distinction, therefore, is between a representation which is made innocently, and yet may be considered objectively to be misleading or deceptive, and one which is both objectively misleading and made with the intention to mislead or deceive. The former is analogous to a misleading or deceptive representation in contravention of s 18 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth) where intent is not directly relevant, but the question is whether the representation was objectively likely to mislead or deceive: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 225, 228 per Stephen J and Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 197 per Gibbs CJ.
224 In the administrative law area, this distinction was highlighted by Chesterman J in Firearm Distributors Pty Ltd v Carson [2001] 2 Qd R 26; [2000] QSC 159 (Carson) where, in the course of dealing with a challenge to an administrative decision made under s 71(3) of the Weapons Regulation 1996 (Qld), his Honour said (at [44]):
It is not clear from the authorities whether "fraud or misrepresentation" where it operates to allow a decision to be re-opened is limited to fraudulent misrepresentations or whether an innocent misstatement will suffice. On the basis that a mistake as to the facts is not sufficient to overcome the prohibition against re-making decisions it may well be that an innocent misrepresentation is not enough. The word "misrepresentation" should perhaps be understood as referring to fraudulent misrepresentation and "fraud" as referring to dishonesty of a more general kind, so that only conduct of that kind will vitiate a decision and allow the power to be exercised afresh.
225 To similar effect, in Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 29; [2006] NSWLEC 725, Biscoe J considered a challenge to a consent determination that was made in a set of factual circumstances that are similar to those of the present case. In that matter, the plaintiff alleged that information and documents in the possession of the developer and its consultant relating to the cultural significance of a development site to Aboriginal people were withheld from the Minister. Similarly to Jagot J in Seven West, his Honour posed the threshold question "whether 'innocent' misleading conduct can invalidate a development consent". He went on to note that "this kind of misleading conduct is familiar under legislation such as s 52 of the Trade Practices Act 1974 (Cth)". After referring to a number of decisions on the point, including the Full Court decision in Lego and the decision of Chesterman J in Carson (at [76]-[78]), Biscoe J concluded to the contrary as follows (at [79]):
I uphold the respondents' submission that misleading conduct which is not characterised by fraud, bad faith or the like is, at least generally, insufficient to vitiate an administrative decision. That disposes of this ground of challenge.
226 These decisions show that Mr Burragubba is incorrect in his contention that, where the issue concerns a representation that involves "material dishonesty" (to use his description: see at [135] above), objective dishonesty is sufficient. Instead, in the case of a dishonest or fraudulent representation, the moving party must also show that the representor knew that his or her representation was false or misleading. It is worth adding that, in this context, dishonesty has been held to be interchangeable with fraud: see Macleod at [34]. It follows that, in this case, as well as showing that the alleged representation was objectively dishonest, Mr Burragubba had to show that Adani's officers, Mr Haseler and Mr Manzi, knew that was so, specifically that they knew the Fahrer reports were so materially different from the economic section of the EIS that they could reasonably have been expected to put them before the Tribunal such that a failure to do so conveyed by implication the false representation that the EIS economic material was not in dispute.
227 Consistent with its position that Mr Burragubba had to establish both the objective and subjective elements of his case that its officers had dishonestly misled the Tribunal, Adani filed affidavits by Mr Haseler and Mr Manzi, where they described in great detail their knowledge and belief about the contents of the EIS vis-à-vis the contents of the two Fahrer reports. Neither was cross-examined on his affidavit. Since Mr Burragubba has, for the reasons outlined above, failed to establish that the conduct of Adani's officers was objectively dishonest, it would be a pointless exercise to examine those affidavits insofar as they bear upon the subjective element mentioned above. Nonetheless, it is worth noting that, even if Mr Burragubba had been successful in establishing that the conduct of Adani's officers was objectively dishonest, he would most likely have failed on this ground in any event as a necessary consequence of his failure to cross-examine Mr Haseler and/or Mr Manzi: see Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370-371 per Gibbs J.
228 Having reached these conclusions, I do not consider it is necessary to examine the authorities on the complex issue of implied representations and half-truths: see Aronson at [5.610] and the authorities there cited. It will suffice to observe that, accepting the Joint Report and the two Fahrer reports "qualified the validity" of the economic material in the EIS (see Mr Burragubba's contentions at [137] above), in all the circumstances outlined above, I do not consider that factor placed Adani under any obligation to put those reports before the Tribunal or, conversely, that a failure to do so constituted an implied representation that the economic materials in the EIS were not in dispute. Subject to the proviso that they must not mislead a court, litigants before a court are generally entitled to adduce whatever relevant evidence they consider will support their case: see Tombling v Universal Bulb Co [1951] 2 TLR 289 at 297, per Denning LJ; Meek v Fleming [1961] 2 QB 366 at 379 per Holroyd Pearce LJ; Vernon v Bosley (No 2) [1999] QB 18 at 37 per Stuart-Smith LJ and, at 63, per Thorpe LJ; Forster v Legal Services Board (2013) 40 VR 587; [2013] VSCA 73 at 619-620; [161]-[163] per Kyrou AJA. With administrative decision-makers, the aforementioned proviso will extend to include any apposite statutory requirements and to prevent a person withholding material that is clearly relevant to the particular decision where, to withhold that material, will result "in the decision-making process being rendered seriously defective or irregular" (see Barrett at [170] above). In this matter, there is no express or implicit obligation in the NTA which required Adani to provide the Fahrer reports to the Tribunal. All of the apposite provisions place obligations on the Tribunal. They are to inquire into Adani's right to negotiate applications (s 139), to determine those applications in one of three ways (s 38) and, in making that determination, to take account of the criteria in s 39. Further, in the circumstances of this matter which I have described in detail above, I do not consider Adani's failure to place those reports before the Tribunal had, or would have had, the seriously defective effect described above. I do not therefore consider Adani was under any obligation to provide those reports to the Tribunal.
229 Finally, it is difficult to see how any unfairness would have been occasioned to Mr Burragubba by Adani's failure to put those reports before the Tribunal. The judgments in SZFDE (both in the High Court and in the Federal Court) show that some form of procedural unfairness in the administrative decision-making process is necessary to justify a court intervening in the manner contended for by Mr Burragubba. As is apparent from the examination of those reports above, they opine that the Carmichael project would bring significant economic benefits for Australia, the State of Queensland and the Mackay region of that State. Even assuming, therefore, that the figures in those reports showed that the economic benefits of the Carmichael project were overstated in the EIS, it is difficult to see how that would have assisted Mr Burragubba. That is so because, as is outlined in some detail in the statements he submitted to the Tribunal, he and his group are implacably opposed to the Carmichael mine proceeding because of the adverse effects he claims it will have on the enjoyment of their native title rights and interests. That being so, to obtain some support from the Fahrer reports, those reports would need to have opined that the Carmichael project had no, or very little, economic significance. Only then would they have provided support for his total opposition to the Carmichael project. Since they were to the opposite effect, I do not therefore consider Mr Burragubba would have been the subject of any relevant unfairness by Adani's failure to provide those reports to the Tribunal.
230 For these reasons, the answer to question 3 must be "no". That being so, it is unnecessary to consider the remainder of the questions posed above (at [150]).