Supreme Court of WA|2010-12-03|Before: Ms J, Commission J, Corboy J

ECLIPSE RESOURCES PTY LTD -v- DEPARTMENT OF ENVIRONMENT AND CONSERVATION [2010] WASC 360 (3 December 2010)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ECLIPSE RESOURCES PTY LTD -v- DEPARTMENT OF ENVIRONMENT AND CONSERVATION [2010] WASC 360

Administrative law - Application for an order to show cause - Decision to refuse amendments to licences issued under s 57 Environmental Protection Act 1986 (WA) as plans submitted did not describe the boundaries or area of the proposed prescribed premises - Requirements for a writ of certiorari - Jurisdictional error

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1991) 175 CLR 564

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190

Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd [1994] HCA 61; (1994) 182 CLR 51

Council of Civil Service Unions v Minister for Civil Service [1985] AC 374

General Steel Industries Inc v Commissioner for Railways of New South Wales [1964] HCA 69; (1964) 112 CLR 125

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149

Inland Revenue Commissioner v National Federation of Self Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617

Leech v Deputy Governor of Parkhurst Prison [1988] UKHL 16; [1988] AC 533

McKay v Commissioner of Police [2006] WASC 189

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237

R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171

R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1986] EWCA Civ 8; [1987] QB 815

Re Anastas; Ex parte Welsby [2001] WASC 178

Re MacTiernan; Ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1

Re Minister for the Environment; Ex parte Elwood [2007] WASCA 137

Re The Hon J McGinty MLA; Ex parte Duff [2007] WASC 210

Ridge v Baldwin [1963] UKHL 2; [1964] AC 40

Talbot v Lane (1994) 14 WAR 120

Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353

Wardley Australia Ltd v Attorney-General for Western Australia (1991) 5 WAR 453

Water Corporation v Chief Executive Officer of the Department of Environment [2006] WASC 256

Woodley v Minister for Indigenous Affairs [2009] WASC 251

1 The applicant (Eclipse Resources) operates resource recovery centres located in Abercrombie Road, Postans (Abercrombie Road site) and Wanneroo Road, Wanneroo (Wanneroo site). The chief executive officer (CEO) of the Department of Environment and Conservation (Department) had issued licences in respect of the activities undertaken by Eclipse Resources at each site.

2 In April and June 2009, Eclipse Resources requested that the licences be amended in various ways, including by reducing the area to which they applied within each site. The request was made with the aim of 'ensuring that the [Department's] jurisdiction extended only to the relevant areas of the site and not beyond'.

3 Subsequently, Eclipse Resources applied for a fresh licence in respect of the Abercrombie Road site. The request to amend the licence areas had not been finalised by the time that the application was made. In due course, the Department advised that a licence had been issued but that it applied to the entire area comprising the Abercrombie Road site. It also advised that it intended to issue a new licence for the Wanneroo site, incorporating the amendments sought by Eclipse Resources except that the licence would continue to apply to the entire area comprising that site. The Department stated that the reason why the CEO had refused the requests to confine the areas to which the licences applied was that the plans that had been submitted for the purpose of amending the licences did not 'describe the boundaries or area of the licensed premises'. It also stated that as the plans did not relate to any specific licence condition, the Department considered that they would serve no purpose in the new licences.

4 Eclipse Resources seeks an order that the CEO show cause why a writ of certiorari should not be issued quashing the grant of the licence in respect of the Abercrombie Road site and the decision to refuse the application to amend the licence for the Wanneroo site and why a writ of mandamus should not simultaneously issue commanding that the CEO grant a licence in respect of the Abercrombie Road site and amend the licence in respect of the Wanneroo site so as to conform with the requests made by Eclipse Resources.

5 I have decided that the show cause orders sought by Eclipse Resources should be granted.

The respondent's position on the application

6 The CEO appeared on the hearing of the application. However, the court was informed that he did not wish to be heard, the appearance being merely so that he could provide any assistance that might be required.

The business of Eclipse Resources and the licensed premises

7 The application by Eclipse Resources was supported by an affidavit sworn by Robert Allen Douglas Sippe. Mr Sippe is the managing director of Eclipse Resources.

8 Mr Sippe described the business of Eclipse Resources as being 'in land development involving resource recovery dealing with material, inter alia, classified under the Landfill Waste Classification and Waste Definitions 1996 (as amended) as waste but used by Eclipse Resources as a resource' (par 3). The Abercrombie Road site comprised two lots, one lot owned by Eclipse Resources and the other lot owned by a sister company, Bayardo Pty Ltd. Eclipse Resources occupied and operated its business from the Wanneroo site pursuant to a licence granted by the owners of the land forming the site.

9 Mr Sippe stated that the operations conducted at each site involved receiving inert (that is, non-organic) material which was categorised by staff at the site into:

(a) 'clean fill' suitable for being directly deposited into a void designated by Eclipse Resources as a 'civil works' area within the site;

(b) 'Class 1 (category 63) inert landfill' material to be directly deposited into a void designated by Eclipse Resources as its 'Class 1 inert landfill' void.

10 The disposal of 'Class 1 (category 63) inert landfill' (Category 63 Landfill) by Eclipse Resources is governed by the licences issued by the CEO. The licences were issued pursuant to s 57 of the Environmental Protection Act 1986 (WA) (Act) and the Environmental Protection Regulations 1987 (WA) (Regulations). Eclipse Resources contends that the licences should only apply to that part of each site that it had designated as being suitable and required for the disposal of Category 63 Landfill.

11 It is apparent from the licences that have been issued, the relevant environmental assessment reports and submissions made by Eclipse Resources to the Department and annexed to Mr Sippe's affidavit that:

(a) Eclipse Resources has since 2002 conducted quarrying activities at the Abercrombie Road site, with inert wastes being used to backfill the quarry (see the environmental assessment report forming part of annexure 'RS - 3' at page 46 of Mr Sippe's affidavit);

(b) the dominant purpose of the Abercrombie Road site is light industrial development following sequential land use (see the letter dated 17 April 2009 from Eclipse Resources to the Department being part of annexure 'RS - 5' to Mr Sippe's affidavit);

(c) quarrying activities had been conducted at the Wanneroo site creating a void that required filling to render it suitable for its dominant purpose as land reserved under the Metropolitan Region Scheme for parks and recreation (see the letter dated 30 June 2009 from Eclipse Resources to the Department being part of annexure 'RS - 5').

12 Part V of the Act is entitled 'Environmental regulation'. Division 3 of that part is headed 'Prescribed premises, works approvals and licences'.

13 Section 56 of the Act appears in pt V div 3. The section provides that the occupier of any 'prescribed premises' who causes or increases, or permits to be caused or increased, an 'emission' or 'alters or permits to be altered the nature of the waste, noise, odour or electromagnetic radiation emitted from the prescribed premises' commits an offence unless it is the holder of a licence issued in respect of the prescribed premises.

14 Section 3 of the Act defines:

(c) 'waste' to include matter, whether useful or useless which is discharged into the environment or matter which is prescribed to be waste.

15 Section 3(2aa) provides, relevantly, that a reference in the Act to the emission of anything includes, in relation to 'an emission from premises', a reference to emission onto or into land, water, the atmosphere or living things on, in, under, above or part of the premises.

16 Section 57 of the Act provides that applications for licences in respect of prescribed premises are to be made to the CEO. An application is made in the form and manner approved by the CEO and supported by such plans, specifications and other documents and information as he or she may require.

17 Section 59 empowers the CEO to amend a licence that has been issued in a number of respects, including by 'redescribing the boundaries or area of the premises' to which the licence applies. Section 59(2) enables the licence to be amended on the application of the holder of the licence or on the initiative of the CEO.

18 Section 59B provides for the manner in which an amendment is to be made. As with an application for a licence, an application to amend is made in the manner and form approved by the CEO and is to be supported by any plans, specifications or other documents and information required by him or her. The section also prescribes the procedure by which an application to amend is to be processed. The CEO is required to give the holder of the licence notice of any amendment and to permit representations to be made by the licence holder. The CEO is expressly obliged to consider any representations properly made by the licence holder and ultimately, to give notice of any amendment to the licence. The notice may be given in the form of a revised licence document.

19 Sections 62 and s 62A concern the conditions that may be imposed by the CEO in respect of a licence. Section 62(1) provides that a licence may be granted subject to such conditions as he or she considers to be 'necessary or convenient for the purposes of this Act relating to the prevention, control, abatement or mitigation of pollution or environmental harm'. Section 62A sets out examples of conditions that may be attached to a licence but nothing in the section or the regulations made pursuant to the Act prevents other conditions being attached.

20 The definition of 'prescribed premises' contained in the Act merely refers back to pt V. The word 'premises' is defined to mean 'residential, industrial or other premises of any kind whatsoever and includes land, water and equipment' (s 3). It is to be noted that the definition obviously contemplates that 'premises' may comprise something different to the whole of a lot created for the purposes of the Transfer of Land Act 1893 (WA) (TLA).

21 Regulation 5 of the Regulations states that the premises specified in sch 1 are prescribed premises for the purposes of pt V of the Act. Schedule 1 contains a number of categories which describe various premises by reference to the activity undertaken on the premises. For example, category 1 comprises 'premises on which the watering and feeding of cattle occurs, being premises situated more or less than 100 m from a water course and on which the number of cattle per hectare exceeds 50'.

22 Categories 63 - 66 of sch 1 concern landfill sites. Each category relates to what is described as a 'class' of landfill. In particular, Category 63 identifies premises by reference to the following description:

Class 1 inert landfill site: premises on which waste (as determined by reference to the waste type set out in the document entitled 'Land Fill Waste Classification and Waste Definitions 1996' published by the chief executive officer and as amended from time to time) is accepted for burial.

23 Mr Sippe described the business of Eclipse Resources by reference to the Land Fill Waste Classification and Waste Definitions (Definitions). The Definitions identify types of waste permitted for disposal within each class. For example, table 1 in the Definitions indicates that 'Class 1 (prescribed premises Category 63) landfill' includes 'clean fill', 'type 1 inert waste' and 'type 1 special waste'. The Definitions then further define expressions such as 'clean fill' and 'type 1 inert waste' and 'type 1 special waste'. The various types of waste - clean fill, type 1 inert waste etc - may be disposed of in different categories of prescribed premises.

24 A further distinction is made between different types of landfill so that, for example, inert landfill may be disposed of in Category 63 prescribed premises and putrescible landfill in Categories 64 or 89 prescribed premises. That distinction is made by reference to the class of landfill and hence, 'Class 1 (prescribed premises Category 63) inert landfill' refers to an unlined landfill area designed to accept inert wastes while 'Class 2 (prescribed premises Category 64 or 89) landfill' refers to an unlined area of landfill designed to accept putrescible and inert wastes. Consequently, the class of landfill and the category of prescribed premises will describe something about the nature of the premises on or in which the landfill is to be disposed of and its suitability for the type of waste that is to be received. The complexity of the classification system permits the use that may be made of prescribed premises to be defined with considerable precision.

25 Part VII of the Act provides for limited rights of appeal from certain decisions made by the CEO. An applicant for a licence may appeal from a refusal to grant a licence (s 102(1)(a)) or the imposition of a condition in the licence (s 102(1)(c)). Further, the holder of a licence aggrieved by an amendment to a licence may also appeal (s 102(2)). In each instance, the appeal is to the Minister.

26 However, the Act does not expressly provide a right of appeal where the CEO grants a licence but the grant has not been for the area requested by the applicant (as in the case of the Abercrombie Road site) or from a refusal to grant an amendment to a licence sought by a licence holder.

The licences that had been issued to Eclipse Resources

27 The request by Eclipse Resources to amend the licence in respect of the Abercrombie Road site was made to the Department by letter dated 17 April 2009 (annexure 'RS - 5' to Mr Sippe's affidavit). The licence that applied at that time had been issued on 31 March 2005 (attachment 'RS - 3' to Mr Sippe's affidavit). It specified that Eclipse Resources should only accept and bury clean fill, inert waste type 1 and special waste type 1. The licence imposed various conditions concerning reporting, soil management and discharge into ground water. The licence was for five years expiring on 27 April 2010.

28 The licence contained a section headed 'name and location of premises' which identified the premises by reference to part of the description appearing on the certificates of title for the lots comprising the site ('lot 115 on plan 48295' and 'lot 2 on plan 29392'). The licence also incorporated as 'attachment 1' a plan depicting the location of the two lots. There was no cross-reference in the remainder of the licence to the attachment. However, the apparent purpose of the plan was to depict the area to which the licence applied: refer s 57 of the Act and see the extract from the Department's letter dated 15 April 2010 that is reproduced later in these reasons.

29 The licence in respect of the Wanneroo site was issued on 19 February 2009 and expires on 18 February 2014. It referred to the premises as 'lot 12 on plan 9605 Wanneroo Rd, Neerabup' but also included as an attachment an aerial photograph depicting the site with lines drawn on the photograph to delineate the boundaries of the premises.

30 By its letter of 17 April 2009, Eclipse Resources requested various amendments to the licence issued in respect of the Abercrombie Road site (attachment 'RS - 5' to the affidavit of Mr Sippe) including that the licence be varied so as to apply to only parts of the two lots comprising the site. Accompanying the letter was a survey plan of the site, similar to attachment 1 to the licence but with an area shaded to show those parts of each lot that were the subject of the application to amend. That is, the shaded areas depicted the area across the two lots that Eclipse Resources proposed would be subject to the licence, those areas being less than the area of the whole of each of the lots forming the site (see Mr Sippe's affidavit at page 77). The letter requested that the plan be substituted for the diagram that was then attachment 1 to the licence.

31 The plan stated the dimensions of the area that was proposed for the amended licence and provided the survey co-ordinates for each corner of the shaded area.

32 The letter requesting the amendment identified four 'contributing factors' as to why Eclipse Resources sought to reduce the area within the Abercrombie Road site to which the licence applied:

(a) The new designated 'Category 63 area' would only be used for certain types of waste.

(b) The balance of the site where there was a void requiring fill to render it suitable for its dominant purpose as a light industrial development would continue to be treated as a civil works site.

(c) The material that was to be used as fill in the civil works site did not have the potential to cause pollution and was being recycled or reused for a beneficial end use and so it was not waste. Disposal of that material did not require a licence to be issued under the Act.

(d) The Definitions indicated that such material could be used for fill without a licence.

33 By letter dated 30 June 2009, Eclipse Resources requested similar amendments to be made to the licence issued in respect of the Wanneroo site. The letter enclosed an aerial photograph similar to that which was attached to the licence but on which lines had been added to depict an area within the site and which were obviously intended to show the boundaries of the proposed licence. In addition, there was a survey plan of the site with a shaded area indicating the proposed boundaries of the licence. Again, the survey plan included the dimensions of the proposed licence area and provided the survey co-ordinates for the corners of the bounded area.

34 Substantially the same reasons were given for seeking to amend the area of the Wanneroo site as had been given for requesting amendments to the licence for the Abercrombie Road site.

35 By letter dated 15 April 2010, the Department advised Eclipse Resources that its application for a new licence in respect of the Abercrombie Road site had been granted. The letter further advised that:

The new licence does not include the plan delineating the area in which Eclipse Resources proposes to confine the disposal of inert waste which was enclosed with your correspondence dated 17 April 2009. In that correspondence you requested that the plan be substituted for attachment 1 of the existing licence. The purpose of attachment 1 of the existing licence (and attachment 1 of the new licence) is to depict the boundary of the licensed premises. As the plan does not describe the boundaries or area of the licensed premises, DEC does not consider it an appropriate substitute for Attachment 1. Moreover, as the plan does not relate to any specific licence conditions, DEC considers that it would serve no purpose in the new licence and therefore has not been included. This of course does not mean that Eclipse Resources is prevented from confining the disposal of inert waste to a particular area within its licensed premises. (emphasis added)

36 The new licence incorporated as attachment 1 an aerial photograph of the Abercrombie Road site marked to indicate that the licence applied to the entire site.

37 By letter dated 16 April 2010, the Department advised Eclipse Resources that it intended to amend the licence issued in respect of the Wanneroo site. The letter further advised that the licence amendment did not include the plan depicting the area that Eclipse Resources had proposed should be the prescribed premises for the purpose of the licence. The letter contained a statement identical with that made in the Department's letter of 15 April 2010 about the Abercrombie Road site as to why attachment 1 had not been substituted; that is, that the plan submitted by Eclipse Resources did not describe the boundaries or area of the licensed premises and the plan did not relate to any specific licence considerations.

38 The letters dated 15 and 16 April 2010 from the Department to Eclipse Resources did not further explain why the Department considered that the plans submitted by Eclipse Resources did not describe the boundaries or area of the licensed premises. There was also no explanation as to why the CEO considered that it was relevant that the reduction in the area of the prescribed premises proposed by Eclipse Resources should be linked with the imposition of a specific licence condition. However, it is to be noted that the letters did not dispute any of the matters stated by Eclipse Resources as to why it sought to confine the licence areas.

39 It is also important that in its letters the Department identified the purpose of the attachment to each licence as being to depict the boundaries of the licensed ('prescribed') premises. That is, the licensed area was described by the attachment and not by what appeared in the section headed 'name and location of premises' or elsewhere in the licence. Consequently, the meaning to be given to the Department's advice that there would be no purpose served by including the submitted plans in the new licences was that it considered that there would be no purpose served by amending the licence areas as the conditions imposed on the licences did not relate to particular parts of the prescribed premises.

The evidence relied on by Eclipse Resources as to the description of the boundaries

40 Annexure 'RS - 8' to the affidavit of Mr Sippe was a letter dated 7 May 2010 from Mr Still of McMullen Nolan, surveyors. Mr Still described himself in the letter as a licensed surveyor. McMullen Nolan prepared the survey plans which were submitted by Eclipse Resources to depict the proposed new boundaries for the prescribed premises.

41 Mr Still stated in his letter that in his opinion the plans did properly describe the areas to be licensed as:

(a) That part of the land that was the proposed licence area was unambiguously shown on the plan.

(b) The primary test of whether a parcel of land is adequately described is whether it can be reinstated either on the ground or on another plan or in a computer software package such as GIS. In both plans, the corners of the proposed Category 63 areas were described by survey co-ordinates. According to Mr Still, survey co-ordinates are only valid if the datum on which they are based is also known and in this instance, the co-ordinates in both plans were based on the Perth Coastal Grid 94 which was a 'GDA 94' client grid and therefore had 'legal traceability'. Consequently both plans adequately described the areas proposed to be licensed to enable proper reinstatement.

42 According to Mr Still, the source of the datum for the survey co-ordinates was indentified in each plan (in the right-hand box forming part of the plan details at the base of each drawing).

43 I accept the opinions expressed by Mr Still for the purpose of determining this application; there was, of course, no evidence to the contrary given the position taken by the respondent.

(a) In granting licences and in considering applications to amend licences that have been granted, the CEO has legal authority to determine questions affecting the rights of applicants and licence holders so that certiorari is available in respect of those decisions.

(b) The CEO made errors that went to his jurisdiction as the decisions were ultra vires (in the case of the grant of the licence for the Abercrombie Road site), unreasonable, took into account irrelevant considerations and failed to take relevant considerations into account. The CEO also failed to accord Eclipse Resources procedural fairness in making the decisions.

(c) The CEO's power to grant or refuse a licence was limited to whatever was the subject of the application by Eclipse Resources. He did not have statutory authority to grant a licence that had not been applied for by Eclipse Resources.

(d) The decisions were unreasonable in the Wednesbury sense in that it was unreasonable to grant a licence in a form that had not been sought by Eclipse Resources and the decisions relied on reasoning that was 'untenable'.

(d) The CEO took into account irrelevant considerations by having regard to the area previously licensed rather than the prospective use of the premises and what might be required to render an activity on the premises lawful when undertaken in the future. He also failed to take into account the relevant fact that Eclipse Resources was seeking to only dispose of Category 63 Landfill.

(e) The CEO made an error of fact that went to his jurisdiction to grant or amend the licences - that the boundaries of the proposed licence areas were not described.

(f) Eclipse Resources was denied procedural fairness in relation to the grant of the licence for the Abercrombie Road site. No notice was given of the intention to grant a licence over the whole of the site rather than the limited area that was the subject of the application.

45 An applicant for a show cause order must demonstrate an arguable case for the relief sought: see, for example, Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282. In that case, Buss JA referred to a passage from the judgment of Lord Diplock in Inland Revenue Commissioner v National Federation of Self Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617, 642 - 644 which was cited with approval by Malcolm CJ (with whom Kennedy and Ipp JJ agreed) in Talbot v Lane (1994) 14 WAR 120, 152. In IRC v National Federation of Self Employed and Small Businesses, Lord Diplock said that:

If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of judicial discretion, to give him leave to apply for that relief.

46 In Cazaly Iron, Buss JA also referred to the judgment of McLure J in Re MacTiernan; Ex parte Coogee Coastal Action Coalition Incorporated [2004] WASC 264 where her Honour stated in respect of the arguable case test that '[o]n any view that requirement will not be satisfied if the case is so clearly untenable that it cannot succeed (being the test in General Steel Industries Inc v Commissioner for Railways of New South Wales [1964] HCA 69; (1964) 112 CLR 125 at 130)' [47].

47 Buss JA observed that he did not consider that what was stated by McLure J in Re MacTiernan was inconsistent with IRC v National Federation of Self Employed and Small Businesses and Talbot v Lane. His Honour explained that 'if, however, the application raises matters of fact or legal complexity, "a quick perusal of the material then available" may not be sufficient to determine whether an applicant has a reasonably arguable case. Some greater scrutiny may be necessary' [55].

48 The application by analogy of the test in General Steel Industries Inc v Commissioner for Railways (which is the long established test for determining applications under O 20 r 19(1)(a) Rules of the Supreme Court 1971 (WA)) was first suggested by McLure J in Re Anastas; Ex parte Welsby [2001] WASC 178. In that case, her Honour noted that the threshold test had been formulated in different ways; that the General Steel Industries v Commissioner for Railways test was 'a very low threshold test' and that it may be that in practice the difference between the various formulations in the authorities was more apparent than real [17].

49 In McKay v Commissioner of Police [2006] WASC 189 Martin CJ said:

I would go further perhaps than some of the earlier authorities and suggest that it would be an inappropriate exercise of the powers conferred upon such a Judge to issue an order nisi unless he or she were satisfied that the arguable case had some reasonable prospect of success [3].

50 In Re The Hon J McGinty MLA; Ex parte Duff [2007] WASC 210 Jenkins J agreed with the formulation of the threshold test proposed by Martin CJ in McKay [3], while in Woodley v Minister for Indigenous Affairs [2009] WASC 251 Martin CJ again observed:

[P]erhaps it would be preferable to formulate the test in terms of, firstly, the applicant satisfying the Court that there is an arguable case and, secondly, advancing the proposition that if that case had no reasonable prospect of success it would be inappropriate to grant relief even though there was an arguable case [37].

51 The short passage reproduced above from McKay v Commissioner of Police makes it clear that the test proposed by Martin CJ in that case was intended to be different in substance to that applied in the earlier authorities as summarised by Buss JA in Cazaly Iron. That is confirmed by the observations made immediately after the passage that has been reproduced from McKay v Commissioner of Police concerning the public interest in the use of the limited resources of the judicial system. However, there are apparently subtle shifts between the formulations in McKay v Commissioner of Police and Woodley v Minister for Indigenous Affairs and as his Honour commented in the second of those cases, 'the nicety of the distinction between an arguable case and an arguable case without reasonable prospects of success is perhaps a semantic issue' [37].

52 It is not necessary to descend further into an examination of the way in which the test has been stated in the authorities to determine this application. That is because I consider that the application should be granted regardless of which formulation is adopted. I would only add that the reference by McLure J to General Steel Industries v Commissioner for Railways serves as a reminder that in determining what constitutes an arguable case and assessing the prospects of that case succeeding it is necessary to be sensitive to uncertainties in the law and its possible future development.

53 The expression 'arguable case' in what follows is used as a short-hand reference to the tests that have been identified in these reasons, including those suggested by Martin CJ.

54 It is important to note carefully the actual wording of the reason given by the Department for why the CEO rejected the request made by Eclipse Resources: it was that the plan did not describe the boundaries or area of the licensed premises. The reason focused on the plan considered separately from the balance of the licence document. The question was whether the plan itself described the boundaries or area of the proposed licensed premises.

55 It is also important to observe that the CEO through the Department did not suggest that it was contrary to the Act or the Regulations or the Department's policies for the administration of the Act to permit only part of a site to be designated as prescribed premises or that there was some reason why the proposed licensed areas were, in themselves, unacceptable. The primary reason given was the want of a proper description of the boundaries or area of the proposed licensed premises in the plans.

56 It is difficult to ascertain why the CEO considered that the plans submitted by Eclipse Resources did not describe the boundaries of the proposed prescribed premises. The dimensions and positioning of the areas within each site were depicted in the plans and fixed by the survey co-ordinates. According to Mr Still, that information was sufficient to enable the boundaries of the proposed licence areas to be reinstated; that is, they could be located on the ground or on a plan using some form of positioning or survey device. That much appears to be reasonably evident from the plans subject only to establishing that the survey co-ordinates were based on known datum. The plan for the proposed licensed area at the Wanneroo site, for example, contains much more information than the aerial photograph that comprises attachment 1 to the existing licence (except that precision in depicting the boundaries pictorially or diagrammatically was presumably thought to be unnecessary given that the licensed area equated to a TLA lot).

57 It is not immediately apparent how the boundaries of the proposed licensed area could be more precisely described than by giving the dimensions of the proposed area and its position within the site by using survey co-ordinates. Consequently, I consider that there is a good argument available to Eclipse Resources that the plans, viewed in isolation, do describe the boundaries of the proposed licensed areas. The qualifying words 'viewed in isolation' may be signifcant. For example, the CEO may have been thought that it was necessary that prescribed premises be described by reference to features that enabled ready identification on a visual inspection - possibly, so as to facilitate the enforcement of the licence conditions. However, that is speculation and does not accord with the reason given by the Department for the CEO rejecting the requests made by Eclipse Resources.

58 There is nothing in the statutory scheme as previously outlined that would appear to require the boundaries of the prescribed premises to correspond with, for example, the boundaries of a TLA lot or to be defined by some different means to that adopted by Eclipse Resources. As has been mentioned, the classification system which underpins the licensing requirements of the Act and the Regulations appears to accommodate considerable precision in defining licence areas.

59 The remaining questions to be determined are whether Eclipse Resources has an arguable case that the decision by the CEO is susceptible to judicial review and that writs of certiorari and mandamus might be issued on any of the grounds specified in the originating motion for show cause orders.

Is the decision susceptible to judicial review?

60 In its written submissions in support of its application, Eclipse Resources merely referred to the seminal statement by Atkin LJ in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co [1924] 1 KB 171 on this question: certiorari and prohibition lie against 'any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority' (205). Aronson, Dyer and Groves contend that each element in Lord Atkin's formulation remains relevant to determining when certiorari is available in Australian law: Aronson M, Dyer B, Groves M, Judicial Review of Administrative Action (4th ed, 2009) [12.100]. However, much water has flowed under the administrative law bridge since his Lordship's statement. For example, Aronson, Dyer and Groves suggest that the requirement that the decision affect the subject's rights 'is on the brink of becoming, more simply, a requirement that it has some sort of legal effect' (page 825). In this case, the CEO's decisions would appear to affect the rights of Eclipse Resources no matter how narrowly Lord Atkin's requirement is interpreted.

61 An issue that might arise in this matter is whether it is necessary for Eclipse Resources to establish that the CEO was under a duty to act judicially in considering the applications to amend the licences and if so, whether it can satisfy that requirement.

62 In England, the requirement that the decision-maker must be under a duty to act judicially has been dispensed with following the rejection in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 of the need to classify a power as 'judicial' before the requirements of procedural fairness applied to the exercise of the power: see O'Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237; Leech v Deputy Governor of Parkhurst Prison [1988] UKHL 16; [1988] AC 533; Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 and R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1986] EWCA Civ 8; [1987] QB 815. However, as previously noted Aronson, Dyer and Groves suggest that the requirement that the decision-maker must be under a duty to act judicially has not yet been abandoned in Australian law.

63 The requirement was very recently considered by the New South Wales Court of Appeal in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190. Spigelman CJ emphatically rejected the suggestion made by Aronson, Dyer and Groves:

The critical issue is whether the relevant decision-maker is exercising public power, relevantly, a statutory power. There is no longer a requirement that there be an identifiable, additional element that the relevant decision-maker has a duty to act judicially before that decision-maker is amenable to the prerogative writs. I do not share the doubt expressed by the learned authors Mark Aronson, Bruce Dyer and Matthew Groves Judicial Review of Administrative Action, 4th ed (2009) Lawbook Co at [12.120] as to whether the superadded duty has been authoritatively rejected in Australia [10].

(a) There was no place for a superadded duty to act judicially in the formulation of the scope of Australian administrative law by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 and accepted in many subsequent cases: [13] - [14].

(b) Many judgments had rejected the relevance of characterising decision-makers as 'executive' on the one hand and 'judicial' or 'quasi-judicial' on the other hand: [15].

(c) The over-ruling of Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353 by the High Court in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 and Ainsworth v Criminal Justice Commission [1992] HCA 10; (1991) 175 CLR 564 was significant. It was no accident that when Brennan CJ and Gaudron and Gummow JJ quoted from R v Electricity Commissioners in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 158, they referred only to the words 'to determine questions affecting the rights of subjects' and omitted the words 'and having a duty to act judicially': [16] - [18].

(d) The 'duty to act judicially' reflected the language of an earlier age: [19].

65 Basten JA expressed agreement with the views of Spigelman CJ [84]. Further, his Honour observed that the requirement 'could have arisen in numerous cases in which certiorari has been sought in relation to the decisions of Ministers, administrative decision-makers, local councils and similar bodies where it has not only not been raised, but where the occasion has passed without comment' [83]. A review of the relevant case law in this jurisdiction confirms that observation, especially where the decision under review affects the use of land; see also in relation to decisions made under the Act: Re Minister for the Environment; Ex parte Elwood [2007] WASCA 137 and Water Corporation v Chief Executive Officer of the Department of Environment [2006] WASC 256.

66 In my view, there is an arguable case that the CEO's decisions that are the subject of Eclipse Resources' application are susceptible to judicial review and that relief in the nature of certiorari and/or mandamus is available.

67 Eclipse Resources contends that the CEO acted beyond power in granting the fresh licence in respect of the Abercrombie road site without amending the licence area. It is said that the CEO can only grant a licence pursuant to an application made under s 57(1) of the Act. Consequently, the extent of the CEO's power is determined by the application; the CEO is not empowered to grant a licence in respect of something that is not the subject of the application. To take a simple example, the CEO has no authority to grant an application in respect of premises 'A' on an application for a licence over premises 'B'. By analogy, it is said that in this case the CEO had no power to grant a licence over the whole of the Abercrombie Road site when the application was only in respect of a part of the site (the areas depicted in the plan submitted by Eclipse Resources).

68 It might be argued that the CEO's powers to grant a licence are more flexible than is suggested by Eclipse Resources. The CEO may have power to grant a licence in respect of an area that differs in some respects from that identified in an application where it is considered that the variation is necessary to better achieve the purposes of the Act and its administration by the CEO and the Department. However, what Eclipse Resources applied for and what it was granted was significantly different and it was not said that the difference reflected policy considerations. Arguably, there may be questions of degree involved. The CEO's power to grant something different to that which was sought may, however, be limited depending on the extent and significance of the variation and the reasons for why there was a difference; that which is granted may be so different from that which was applied for that the statutory power to grant a licence on an application being made was not, in substance, engaged.

69 I have reservations about this ground (ground 2.1 of the originating motion). However, I consider that Eclipse Resources has demonstrated that it is arguable in the sense that I have previously explained.

Jurisdictional error while acting within 'jurisdiction'

70 It is to be observed that Eclipse Resources' originating motion draws from much of the catalogue of grounds for judicial review. That may reflect two matters: first, the difficulty of identifying and characterising any error that may have been made by the CEO given the very brief explanation provided for rejecting the applications to amend the licence areas and second, the uncertainties surrounding the notion of jurisdictional error and the evolving state of the law on judicial review.

71 This application is not an appropriate occasion to undertake a discursive analysis of the concept of jurisdictional error and the current state of administrative law. Aronson, Dyer and Groves identify eight categories of error that they suggest are comprehended by the expression 'jurisdictional error' (while recognising that the categories are not closed) [1.90]. I will simply adopt that classification and in doing so, I am content to assume that no distinction is to be made between the scope of jurisdictional error when applied to powers exercised under federal or state legislation.

Characterising the error asserted by Eclipse Resources

72 Three matters are relevant to characterising the error that Eclipse Resources contends was made by the CEO:

(a) the CEO's power to require a plan to be submitted in support of an application for a licence or an amendment to a licence is merely a power to require information; it is irrelevant to any substantive power that the CEO may have to reject an application on the ground that the plan submitted was inadequate;

(b) the question of whether the plans submitted by Eclipse Resources did describe the boundaries or area of the proposed amended licence areas is a question of fact;

(c) it is not immediately apparent why the CEO considered that the plans submitted by Eclipse Resources did not describe the boundaries or area of the proposed licence areas and in that context, the absence of any explanation by the CEO may be significant when considering possible grounds of review.

73 I consider that it is possible, at least for the purpose of this application, to characterise the error asserted by Eclipse Resources in the following ways having regard to those matters:

(a) The decision was 'seriously' irrational or illogical in that the plans not only described the boundaries or areas of the proposed amended licence areas but they did so with a high degree of precision - for example, the plan for the proposed licence area for the Abercrombie Road site stated that the area was 7.58 hectares, and the length of the boundaries was given in metres and centimetres.

(b) The decision was also 'unreasonable' having regard to the contents of the plan.

74 I consider that Eclipse Resources has established an arguable case for final relief on the following grounds having regard to the possible characterisation of the error that it has asserted. I have expressed the arguable grounds in unequivocal language. However, that is not intended to convey any finding or conclusion beyond that I am satisfied that an arguable case has been demonstrated (that comment also applies to what has been said about the possible characterisation of the error asserted by Eclipse Resources).

75 Ground 2.2 of the originating motion alleged that the CEO's decisions were so unreasonable that no reasonable decision-maker could have made the decisions. The ground highlights some of the uncertainties surrounding the characterisation and scope of reviewable error.

76 Aronson, Dyer and Groves contend that in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 the High Court:

(a) recognised that findings of fact could be reviewed on the ground that they were substantially irrational or illogical (see [4.405] and following);

(b) distinguished between irrationality and unreasonableness as grounds of review (see [6.205]).

77 They conclude that 'unreasonableness review no longer allows challenges to fact finding ... rather it applies only to the decision-makers discretionary decisions' [6.205]. Consequently, in their opinion:

S20's demarcation between the review standards of unreasonableness and irrationality provides each with a much sharper focus. There is a significant difference between supervising evaluate choices on the other hand (unreasonableness) and the care with which the decision-makers have approached their tasks (irrationality). [4.425]

78 Aronson, Dyer and Groves accept that there have been decisions since S20 that are inconsistent with their analysis: see [4.415]. They also recognise that the irrationality ground requires 'extreme' irrationality in fact finding to justify judicial intervention. Similarly, a court should not be quick to find Wednesbury unreasonableness. Nevertheless, I consider that having regard to the purpose of this application (and bearing in mind the references by McLure J to General Steel Industries v Commissioner for Railways of NSW in formulating the 'arguable case' test), Eclipse Resources should be permitted to seek final relief on alternative grounds that:

(a) the CEO's finding that the plans submitted with the applications to amend the licences did not describe the boundaries or the area of the proposed licence areas was irrational;

(b) the CEO's decision to refuse the applications on that basis was unreasonable.

79 The grounds pleaded in the originating motion did not expressly refer to irrationality. However, in its written submissions on unreasonableness Eclipse Resources contended that the reason given by the CEO on the application to amend the licence area for the Abercrombie Road site was irrational. I would be prepared to grant leave to amend the grounds of review to raise irrationality as a distinct and separate ground for challenging the CEO's findings on both applications.

80 Eclipse Resources contends by ground 2.3 that it was denied procedural fairness by the CEO in relation to the decision to grant a new licence for the entire Abercrombie Road site. It complains that it was given no notice of the decision to issue a new licence without any amendment to the licence area.

81 There is authority for the broad proposition that a statutory power must be exercised with procedural fairness to a party whose interests might be adversely affected by its exercise absent a clear legislative intention to the contrary: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 [81] - [83]. There is no indication in the Act that Parliament intended that the CEO was to be relieved of any obligation to accord procedural fairness to an applicant for a licence or an amendment to a licence. Rather, s 57 and s 59B indicate the contrary intention.

82 As I have indicated, the complaint is that the CEO gave no notice of his intention to issue the licence for the Abercrombie Road site without an amendment to the licence area. However, the CEO's decision was made after Eclipse Resources had applied to amend the existing licence and it is plain that the CEO took that application into consideration when deciding to issue a new licence. What, I think, Eclipse Resources complains about, in substance, is that it was denied an opportunity to make further submissions to the CEO as to why the plan it submitted in support of its application to amend did describe the boundaries or area of the proposed licence area and why, therefore, the new licence ought to have been issued only in respect of that area.

83 I consider that Eclipse Resources should be permitted to seek final relief on ground 2.3 of the originating motion subject to clarifying by particulars what step(s) it is alleged that the CEO ought to have taken to have accorded it procedural fairness. I would also be prepared to entertain an application to amend the grounds to extend the allegation of denial of procedural fairness in relation to the decision to refuse the amendment proposed for the licence area at the Wanneroo site.

84 Grounds 2.4 and 2.5 of the originating motion contend that the CEO took into account irrelevant considerations in refusing the applications to amend the licence areas, alternatively failed to take into account relevant considerations. The grounds arise out of that part of the Department's letters of explanation that stated that the plans submitted in support of the applications to amend did not relate to any specific licence condition and so no purpose would be served by including them in the licences to identify the prescribed premises.

85 The gist of the reason provided by the Department was that the use of the land comprising the Abercrombie Road and Wanneroo sites would not be affected by the CEO's refusal to amend the licence areas. There were no licence conditions that would apply to that part of the land that was not to be used for disposing of landfill so that there was no purpose in reducing the area of the prescribed premises.

86 There was scant evidence that the use of the land lying outside the proposed amended licence areas would be adversely affected by the refusal to amend the licence areas. Mr Sippe expressed a concern that the Department might require Eclipse Resources to undertake some step by reference to the whole of the sites rather than by reference to that part of each site that was being used for a prescribed activity. He gave as an example, a request that the Department had made for a volumetric survey of the whole of the sites (see par 11 of Mr Sippe's affidavit).

87 Arguably, the question of whether the licence conditions might adversely affect those parts of each site that were not used for disposing of landfill was an irrelevant consideration having regard to the purpose for the statutory licensing scheme. There was no suggestion that the CEO considered that it was necessary to define the prescribed premises more widely than that proposed by Eclipse Resources so as to better monitor or control the prescribed activity of disposing of landfill.

88 I consider that Eclipse Resources has demonstrated an arguable case for final relief on ground 2.4 of the originating motion (irrelevant considerations).

89 The contention made by ground 2.5 (relevant considerations) is the converse of the complaint made in ground 2.4. As I understood ground 2.5, it was that the CEO erred by failing to exercise his power to amend to ensure that the prescribed premises corresponded with the prescribed activity. The activity to be undertaken by Eclipse Resources was limited to disposing of Category 63 Landfill in a particular area of land. It required a licence to lawfully undertake that activity in that area. It did not require a licence issued by the CEO to use the land comprising the balance of the Abercrombie Road and Wanneroo sites.

90 A relevant consideration is one which the decision-maker is expressly or impliedly obliged to take into account in the course of reaching the decision under review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. As I have indicated, the Act contemplates that prescribed premises may be defined with precision so as to correspond with the activity for which a licence is required. Arguably, the CEO has failed to take into account the statutory scheme in concluding that it would serve no purpose to grant a licence over a limited area within the Abercrombie Road and Wanneroo sites. I am satisfied that Eclipse Resources has established an arguable case on the matters alleged in ground 2.5 of the originating motion, although I note that grounds 2.4 and 2.5 are merely alternative ways of expressing essentially the same contention.

91 Finally, ground 2.6 of the originating motion alleges that the CEO made 'manifest' errors of fact in determining that the plans that were submitted by Eclipse Resources did not depict the boundaries of the areas to be licensed. Those errors are said to go to the CEO's 'jurisdiction' to have granted the amendments sought. In summary, the argument is that s 59(1)(c) of the Act expressly empowers the CEO to amend a licence by 'redescribing the boundaries or area of the premises' to which the licence applies. The CEO was required to be satisfied that the amendments sought did 'redescribe' the boundaries of the proposed licence areas before he could exercise his power under the section (the 'jurisdictional fact'). The CEO erroneously found that the boundaries were not described and so declined to exercise his power of amendment; he erroneously denied himself power.

92 I am satisfied that Eclipse Resources has established an arguable case on this ground. It would be open to contend that the CEO ought to have found that the plans did describe the boundaries of the proposed licence areas so that his power to amend was engaged and that the real question to be addressed was whether the amendments sought should have been granted having regard to the purpose and provisions of the statutory licensing regime. I recognise that the notion of a jurisdictional fact appears to be a rather artificial (overly analytical) approach to a simple statutory discretion. However, I do not think the construct is so untenable that it is not arguable or that it has no reasonable prospect of success.

93 I am satisfied that Eclipse Resources has also demonstrated an

arguable case for a writ of mandamus to issue to the CEO if it succeeds in quashing the decisions that have been made in respect of its applications. Mandamus requires a decision-maker to exercise a statutory discretion rather than to exercise it in a particular way. However, as Mason CJ pointed out in Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd [1994] HCA 61; (1994) 182 CLR 51, 81 mandamus will issue where the exercise of a statutory discretion according to law in fact requires the administrator to decide in a particular way. Arguably, that would be the position in this case if it is held that the CEO erred in concluding that the plans submitted by Eclipse Resources did not describe the boundaries or area of the proposed licence areas given the reasons that were provided for refusing the applications to amend. A court may decline to issue a writ of mandamus because it considers that the decision-maker will exercise the relevant statutory discretion according to law following the quashing of a decision: see, for example, Wardley Australia Ltd v Attorney-General for Western Australia (1991) 5 WAR 453. However, in my view that and other matters going to the court's discretion should be left to the court that determines the show cause order.

94 I consider that the show cause order that I am prepared to make should be heard by a judge in chambers. I will hear from counsel for Eclipse Resources on the precise form of the order having regard to the conclusions I have reached on the grounds for review.

Protection Regulations 1987

ECLIPSE RESOURCES PTY LTD -v- DEPARTMENT OF ENVIRONMENT AND CONSERVATION [2010] WASC 360 (3 December 2010)

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Judgment (173 paragraphs)

ECLIPSE RESOURCES PTY LTD -v- DEPARTMENT OF ENVIRONMENT AND CONSERVATION [2010] WASC 360 (3 December 2010)

Legislation Cited (3)

Cases Cited (12)