COCKBURN CEMENT LTD -v- THE MINISTER FOR ENVIRONMENT (WA) [2011] WASC 260 (12 September 2011)

COCKBURN CEMENT LTD -v- THE MINISTER FOR ENVIRONMENT (WA) [2011] WASC 260 (12 September 2011) - WASC 2011 case summary — Zoe

Legislation Cited (5)

Environmental Protection Act 1970(Vic)

Protection Act 1986

Works (Cockburn Cement Limited) Agreement Act 1971

Protection Regulations 1987

Profession Act 2008

Cases Cited (22)

24 The power to hear appeals, and to impose additional conditions, is conferred upon the Minister by clear implication from the provisions in pt VII of the EP Act, particularly s 102(2). The appeal is apparently one which proceeds by way of hearing de novo (from the beginning): Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203 [13] (Gleeson CJ, Gaudron & Hayne JJ).

27 Senior counsel for the respondents said that he had not been able to locate any authority which considered when a condition will satisfy the requirement that it is 'subject' to a licence under the EP Act. My research has not disclosed any authority either. Senior counsel for the respondents referred to the approach taken in the planning context which requires that conditions imposed be 'fairly and reasonably relate[d] to [a] proposed development': Newbury District Council v Secretary of State for the Environment [1981] AC 578, 600 (Viscount Dilhorne).

28 This approach has been applied in the planning context in Australia: Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, 37 [2] (McHugh J), 87 88 [157] (Callinan J). In that planning context, the general power to impose conditions has been described as 'not giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised': Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; (1970) 123 CLR 490, 499 (Walsh J).

29 The same approach is taken in Victoria under provisions in the Environmental Protection Act 1970 (Vic). In Protean (Holdings) Ltd v Environmental Protection Authority [1977] VicRp 5; [1977] VR 51, a licence to transport and discharge waste into the environment from two specified chimney stacks could be subject to conditions, limitations or restrictions imposed by the Environmental Protection Authority. Gillard J held that the general power to impose those conditions must 'fairly and reasonably relate' to the permitted use (60). The same approach should apply here to the power in the EP Act to make a licence 'subject' to a condition.

31 I accept this submission. For these two reasons that part of the Appeal Decision which was the Kiln 5 Decision was beyond the power of the Minister. That aspect of the Appeal Decision should be quashed as a jurisdictional error: Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 (Brennan, Deane, Toohey, Gaudron & McHugh JJ).

35 Secondly, it is extremely unlikely that a different result would be achieved if another hearing were conducted, which would also be before a single judge of this court, in relation to an order absolute. The expression 'advancement of justice' is intended to encompass a wide range of considerations. Issues concerning the avoidance of delay and cost, as well as the public interest in the efficient allocation of limited public resources, are relevant factors to consider in deciding whether an order is necessary for the advancement of justice: Re Warden S Richardson; Ex Parte Binthalya Holdings Pty Ltd [2011] WASC 56 [38] (Corboy J).

38 In cases, such as this case, where the application raises significant issues, and where some of those issues involve issues of some complexity, a taxing officer may consider it to be 'entirely reasonable and proper' for senior counsel and second counsel to be engaged: City of Mandurah v Hull [2000] WASCA 353 [5] (Kennedy, Anderson & McKechnie JJ). The usual course now is for the taxing officer, seized of all the costs issues in the case, to make this assessment. That approach should be taken in this case.

CITATION : COCKBURN CEMENT LTD -v- THE MINISTER FOR ENVIRONMENT (WA) [2011] WASC 260 (S)

2 In relation to the primary issue, I have expressed my reasoning in slightly more detail than is usual in relation to a short supplementary point of costs. The reason I have done so is that this primary issue has caused difficulty in a number of cases. It has also been the subject of a comprehensive and thoroughly reasoned decision of Schoombee DCJ in Feaver v Smith [2008] WADC 72 which considered, and raised, a number of related problems concerning O 66 r 51(2) Rules of the Supreme Court 1971 (WA). The primary issue was also thoroughly canvassed before me, particularly in the respondents' submissions.

30 The second case is the decision in Geneva Finance Ltd (Receiver and Manager appointed) v Resource & Industry Ltd [2002] WASC 121 (S).

34 The third case is West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASC 185 (S2).

38 The fourth case is Re City of Joondalup; Ex parte Mullaloo Progress Association Inc [2003] WASCA 293 (S).

43 The respondents referred to authorities for the proposition that the reservation of liberty to apply is to enable further orders to be made for the purpose of implementing and giving effect to principal relief pronounced in an action; a reservation of liberty to apply cannot be used to alter the substance of an order already made: Cameron v Renouf [2008] WASC 60 [28] (Newnes J); Legal Practice Board v Lashansky [No 2] [2009] WASC 78 [24] [25] (Templeman J).

46 The use of the word 'deemed' in O 66 r 51(2) involves a fiction. The subrule 'deems something to be what it is not': Haskins v Commonwealth of Australia [2011] HCA 28 [95] (Heydon J). Order 66 r 51(2) has the effect that my orders on 12 September 2011 are to be treated 'as if' they included a further order, order (e), that:

50 In the usual course, I would address in my reasons any alternative submissions as well as primary submissions. However, in this case the power to make the special costs orders sought by CCL under O 66 r 51(2) is clear as a matter of principle and authority. Further, some of the issues raised by CCL's alternative submission based on the slip rule could not be considered independently of the operation and purpose of O 66 r 51(2). These issues include the meaning of an 'accidental' omission, and concerns that courts 'should not encourage carelessness and thereby put at risk the public interest in the finality of litigation': Hanave Pty Ltd v LFOT Pty Ltd [2004] FCAFC 180; (2004) 136 FCR 566, 576 [42] (Kiefel J). The approach to these issues would be coloured by the purpose and effect of O 66 r 51(2) which creates a 30 day indulgence (subject to O 3 r 5) for parties whose legal representatives have not applied for the relevant costs orders.

53 The adverb 'unusual' qualifies only the 'difficulty' of the matter, not its complexity or importance. This point was well established in relation to the identical terms of the predecessor legislation to s 280(2): Heartlink Ltd v Jones As Liquidator of HL Diagnostics Pty ltd (in liq) [2007] WASC 254 (S) [17] (Martin CJ); Hodgkinson v Doepel & Associates Architects Pty Ltd [2006] WASC 237 (S) [33] (Simmonds J).

(2000) 203 CLR 194

(2004) 221 CLR 30

(1970) 123 CLR 490

(1995) 184 CLR 163

(2004) 136 FCR 566

(1982) 151 CLR 590

At a glance

Court

Decision date

Before

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Judgment (25 paragraphs)

Legislation Cited (5)

Cases Cited (22)