IOF Custodian Pty Limited atf the 105 Miller Street North Sydney Trust v Special Minister of State

Proposed demolition and redevelopment of the MLC Building

1. On or around 7 July 2020, the Applicant made a development application to North Sydney Council for the demolition and redevelopment of the MLC Building.
2. The development application is the subject of separate Class 1 proceedings.

Heritage Council's resolutions

1. On 1 September 2020, the Heritage Council resolved to give notice of its intention to consider listing the MLC Building on the State Heritage Register pursuant to s 33(1) of the Heritage Act 1977 (NSW) (the Heritage Act).
2. On 8 October 2020, pursuant to s 33(2) of the Heritage Act, the Applicant made a submission to the Heritage Council including an annexure entitled "WTP Refurbishment Cost Plan", in response to the Heritage Council's notice of intention to consider the listing of the MLC Building on the State Heritage Register.
3. On 4 November 2020, the Heritage Council resolved that the MLC Building was of State heritage significance.
4. On 5 February 2021, the Heritage Council resolved to recommend to the Minister that the Minister direct the listing of the MLC Building on the State Heritage Register.
5. On 9 February 2021, the Heritage Council recommended to the Minister that the Minister direct the listing of the MLC Building on the State Heritage Register.
6. On 18 February 2021, the Applicant sent a letter to the Minister raising concerns regarding the Heritage Council's resolution that the MLC Building was of State heritage significance.

Independent Planning Commission

1. On 23 February 2021, the Minister requested the Independent Planning Commission (IPC) review the recommendation to list the MLC Building on the State Heritage Register pursuant to s 34(1)(b) of the Heritage Act.
2. On 12 April 2021, a meeting was held between the IPC and the Applicant, at which the Applicant made a presentation to the IPC.
3. On 14 April 2021, a meeting was held between the IPC, the Heritage Council and Heritage NSW.
4. On 28 April 2021, the Applicant sent a letter to the IPC in response to questions from the IPC.
5. On 28 April 2021, the Heritage Council sent a letter to the IPC providing further information on issues regarding the proposed State Heritage Register listing of the MLC Building.
6. On 7 May 2021, the Applicant made a submission to the IPC objecting to the proposed listing of the MLC Building on the State Heritage Register, and annexing: 1. A report from Ethos Urban dated 6 May 2021; 2. A report from Bates Smart dated 8 April 2021; 3. A letter from the Applicant to the Heritage Council dated 8 October 2020, annexing a report from WT Partnership dated 5 October 2020; and 4. A letter from Enstruct dated 6 May 2021.
7. On or around 21 May 2021, the IPC provided to the Minister a report recommending that the MLC Building should be listed on the State Heritage Register (IPC Report).
8. The IPC recommended the listing of the entire MLC Building, including the East Wing.
9. The IPC considered that the East Wing was of lesser state significance than the West Wing of the MLC Building.

The Minister's decision

1. On 31 May 2021, the Minister decided to direct the listing of the MLC Building on the State Heritage Register pursuant to s 34(2) of the Heritage Act.
2. The Heritage Council was informed of the decision referred to at paragraph [24] above and published the Minister's decision to direct the listing of the MLC Building on the State Heritage Register, including the "reasons for the decision to list MLC Building, North Sydney", on its website.
3. The "reasons for the decision to list MLC Building, North Sydney" for the purposes of s 34(4) of the Heritage Act did not explicitly reference the requisite considerations pursuant to s 32(1)(c) and s 32(1)(d). It stated as follows: a. MLC Building North Sydney is of state heritage significance for its importance to the architectural and cultural history of NSW as an outstanding example of a seminal building associated with the evolution of high-rise office design in Sydney and NSW, utilising construction and structural techniques not previously used in Australia. b. Listing will provide for the identification and registration of this item of state heritage significance. c. Listing will promote an understanding of the state's heritage. d. Listing will encourage the conservation of this item of the state's heritage. (the Reasons).
4. On 4 June 2021, the Heritage Council gave notice in the Government Gazette that the item known as the MLC Building, North Sydney (former), situated on all those pieces or parcels of land known as Lot 2 of Deposited Plan 792740 in the Parish of Willoughby, County of Cumberland shown on the plan catalogued HC 3265 in the office of the Heritage Council of New South Wales had been listed on the State Heritage Register in the accordance with the decision of the Minister made on 31 May 2021 to direct the listing.

Relevant legislative provisions

1. Sections 32 and 34 of the Heritage Act contain the relevant processes and considerations for the listing as follows: 32 Minister can direct listing on State Heritage Register (1) The Minister may direct the listing on the State Heritage Register of a place, building, work, relic, moveable object or precinct that the Minister considers is of State heritage significance, but only if the Heritage Council has recommended that the item be listed and the Minister has considered the following: … (c) whether the listing would render the item incapable of reasonable or economic use, (d) whether the listing would cause undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated. 34 Action by Minister following recommendation for listing (1) Within 14 days after the Heritage Council makes a recommendation for listing to the Minister, the Minister must - (a) decide whether or not to direct the listing and inform the Heritage Council of that decision, or (b) request the Independent Planning Commission to review the matter. (1A) On receiving a request to review a matter, the Independent Planning Commission is to conduct its review and provide a report to the Minister within the time period specified in the regulations. (2) If the Minister requests a review by the Independent Planning Commission, the Minister must, within 14 days after the Commission provides its report - (a) consider that report, and (b) decide whether or not to direct the listing, and (c) inform the Heritage Council of that decision. (3) The Minister may make a request under this section on the Minister's own motion or after a request by an affected owner, mortgagee, lessee or occupier. (4) A decision of the Minister to direct, or not to direct, the listing on the State Heritage Register of an item that the Heritage Council has recommended be listed is to contain the reasons for listing or not listing the item and is to be made publicly available on the internet by the Heritage Council within 7 days after the decision is made.

Grounds of challenge to decision to list

1. By its Summons filed 27 August 2021 the Applicant identified 9 Grounds of challenge to the decision of the Minister to list the MLC Building on the State Heritage Register. The various grounds were identified by the Applicant as raising, in summary, the following considerations: 1. Ground 1: Failure to consider a mandatory consideration; 2. Ground 2: Failure to provide reasons; 3. Ground 3: Listing of the East Wing was unreasonable and irrational; 4. Ground 4: Irrelevant consideration in listing the East Wing such that the Heritage Council could play a greater role in any redevelopment; 5. Grounds 5 and 9: Incorrect Application of s 32(1) of the Heritage Act; 6. Ground 6: Error in assuming future development consent; 7. Ground 7: No evidence to support reasonable economic use under s 32(1)(c) of the Heritage Act; and 8. Ground 8: Incorrect application of s 32(1)(c) of the Heritage Act.
2. Whilst all of the grounds were pressed the Applicant identified its case and the relevant matters for determination in the following manner: 1. Ground 1 - The Minister failed to take into account a relevant consideration being the mandatory consideration in s 32(1)(c) and s 32(1)(d). Such failure was evidenced by the Reasons which, it was agreed, did not refer to the mandatory relevant considerations, which failure was evidence of a failure to relevantly consider. A consideration of the Reasons alone would be sufficient to establish the Applicant's case. 2. If the Applicant is unsuccessful on Ground 1 then it is necessary to consider Ground 2. The Applicant contends that if the Minister is found to have taken the mandatory relevant considerations into account, then he has failed to provide the necessary reasons as required by s 34(4) and as a consequence the Minister's decision was invalid. If the Applicant is successful on Ground 2 there is no necessity to determine the remaining grounds. 3. If the Applicant is unsuccessful on Grounds 1 and 2 it is contended that the Minister's decision was flawed on the basis of the matters pleaded in Grounds 3 to 9 and, depending upon the finding on these grounds the decision may be found to be invalid.
3. The Applicant characterised the first two grounds of its Summons as being its primary grounds.
4. The Heritage Council, through its Response to the Applicant's Summons dated 19 November 2021, in effect denied any defect in the decision-making and any entitlement to the relief claimed.

Evidence

1. The evidence was largely documentary and comprised: 1. An Agreed Statement of Facts; and 2. Documentary evidence relating to the making of the decision by the Minister together with all relevant material provided by the Applicant and the material before the Heritage Council and the IPC, and the reports prepared by the Heritage Council and the IPC.
2. In addition, the Applicant relied on the affidavit of Ms Roisin McCann affirmed 11 February 2022 which deposed as to the ownership of the site by the Applicant.

Ground 1: Failure to consider a mandatory consideration

1. Ground 1 was pleaded in the Summons at [17]-[20]. The gravamen of the Applicant's submission on this ground is that the matters to which the Minister had regard in his determination are those matters identified in the Reasons. In this case, the Reasons did not refer to the mandatory considerations as required by s 32(1)(c) and s 32(1)(d) and, therefore, it should be inferred that the Minister failed to take such mandatory relevant considerations into account.
2. The Heritage Council's Response to the Applicant's Summons addressed this ground at paragraphs [18]-[20] and whilst it was admitted that the Minister was required to take the matters referred to in s 32(1)(a) to s 32(1)(d) of the Heritage Act into account and the Reasons did not refer to the matters in s 32(1)(c) or s 32(1)(d) it denied that the Minister failed to take such matters into account or that such an inference as contended for by the Applicant should be drawn.

Evidence

1. The evidence relating to Ground 1 was entirely documentary.
2. The relevant parts of the documentary evidence upon which the parties relied as relating to Ground 1 are reflected below.
3. The evidence disclosed that the documentary material that was provided to the Minister upon which his decision was recorded on 31 May 2021 comprised: 1. A briefing note comprising 3 pages (the Briefing Note) together with 4 attachments. Reference in the text of the Briefing Note made reference to "DOC21/74795". The evidence did not disclose that the material that was within that reference was physically present with the Minister at the time of the making of the decision. It was accepted that the reference was to a Departmental file which was capable of being accessed by the Minister but there was no evidence that the Minister did access this file. The parties agreed that such reference referred to a package of material provided to the Minister at an earlier date contained at Tab 19 of the Evidence Book Exhibit A and referred to at [40(1)] below. 2. Attachment 1 to the Briefing Note comprised a document headed "Listing on the State Heritage Register Statutory Considerations" (Attachment 1). 3. Attachment 2 to the Briefing Note comprised the Reasons; 4. Attachment 3 to the Briefing Note comprised the IPC Report; and 5. Attachment 4 to the Briefing Note comprised a draft Media Release dated 16 June 2021 announcing the listing of the MLC Building on the State Heritage Register; (together referred to as the Decision Documents).
4. In addition to the Decision Documents, evidence was also adduced that the Minister had received earlier briefings relating to the listing of the MLC Building and other correspondence comprising: 1. Undated Briefing Note to the Minister from the chair of the Heritage Council titled: "Recommendation to List MLC Building, North Sydney (former) on the State Heritage Register (SHR)" signed by the chair on 9 February 2021. The Undated Briefing Note contained no signature or marks placed by the Minister. This Undated Briefing Note is the document referenced in the Decision Documents Briefing Note. The Undated Briefing Note contained 7 attachments comprising: 1. Location Map; 2. Recommended curtilage; 3. Heritage Council's recommendation to list report; 4. Heritage Council's resolution; 5. Submissions; 6. Submissions from owner; and 7. Direction to list on the State Heritage Register; (together referred to as the Heritage Council Recommendation Briefing Note). 1. Letter from the owner to the Minister dated 18 February 2021 relating to its submissions to the Heritage Council referencing the s 32(1)(c) and s 32(1)(d) factors and outlining its criticism of the Heritage Council's assessment of its submissions (copies of which were attached) together with a concern that some members of the Heritage Council may have a conflict of interest. The letter concludes: Given the serious deficiencies in the Heritage Council's assessment (as outlined above), it is impossible for the Heritage Council to have concluded the recommendation for listing should be made. The Heritage Assessment and Economic Assessment relied on by the Heritage Council do not allow a proper consideration of the matters required to be considered under section 32(1) of the Heritage Act. When the relevant matters are properly considered, it is clear that the Heritage Council should not have resolved to recommend the listing of the MLC Building. 1. Briefing Note to the Minister signed by the Minister on 23 February 2021 in which the Minister exercised the power in s 34(1) of the Heritage Act and requested that the IPC review the matter. This Briefing Note also canvassed the making of an interim heritage order which was not made by the Minister. This Briefing Note contained 4 attachments comprising: 1. Briefing on the interim heritage order; 2. Issues relating to the owner's objection to the listing with a summary of the peer review reports of the submission commissioned by the Heritage Council; Heritage Council consideration; and recommendation to refer the listing mater to the IPC; 3. Draft interim heritage order (unsigned); and 4. Letter of referral to the IPC from the Minister dated 23 February 2021 signed and dated by the Minister; (together referred to as the IPC Referral Briefing Note). 1. Letter from the chair of the IPC to the Minister dated 21 May 2021 providing the IPC Report on the proposed listing. The report comprised 24 pages with no annexures.

Applicant's submissions

1. In this case, as the Minister had requested a review from the IPC, accordingly, upon receipt of that review the Minister was required to act as provided for in s 34(2) which stated: (2) If the Minister requests a review by the Independent Planning Commission, the Minister must, within 14 days after the Commission provides its report - (a) consider that report, and (b) decide whether or not to direct the listing, and (c) inform the Heritage Council of that decision.
2. The requirement of s 34(2)(b) to decide whether or not to direct the listing engaged the consideration of the mandatory relevant considerations in s 32(1) which provided: 32 Minister can direct listing on State Heritage Register (1) The Minister may direct the listing on the State Heritage Register of a place, building, work, relic, moveable object or precinct that the Minister considers is of State heritage significance, but only if the Heritage Council has recommended that the item be listed and the Minister has considered the following - (a) the recommendation of the Heritage Council that the item should be listed, (b) whether the long-term conservation of the item is necessary, (c) whether the listing would render the item incapable of reasonable or economic use, (d) whether the listing would cause undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated.
3. With respect to the decision provided for in s 34(2)(c) the provisions of s 34(4) provide: (4) A decision of the Minister to direct, or not to direct, the listing on the State Heritage Register of an item that the Heritage Council has recommended be listed is to contain the reasons for listing or not listing the item and is to be made publicly available on the internet by the Heritage Council within 7 days after the decision is made.
4. In this case, the totality of the Minister's reasons are those contained in the document signed by him:
5. It is apparent (and agreed) that no part of those reasons referred to the mandatory relevant considerations of: (c) whether the listing would render the item incapable of reasonable or economic use, (d) whether the listing would cause undue financial hardship to the owner, mortgagee or lessee of the item or the land on which the item is situated.
6. Not only were those considerations mandatory it is also apparent that both of these considerations were matters upon which the Applicant had made submissions to the Minister and the IPC in connection with the proposed listing of the MLC Building. To that extent, these issues were live issues in that they were in fact capable of affecting the determination and as such required a consideration and resolution of various issues of fact in order that the matter could be properly considered as was required by s 32.
7. The Minister was required by operation of s 34(4) to provide reasons for his decision and the Minister's decision was required to contain such reasons. In the circumstances of this case, it is appropriate that the inference be drawn, having regard to the Minister's reasons for his decision, that he failed to take into account a mandatory relevant consideration, namely those required by s 32(1)(c) and s 32(1)(d) as his reasons are silent as to any such consideration.
8. Generally, the written reasons provided by a decision-maker are taken to be a statement of those matters adverted to, considered and taken into account. If something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5] per Gleeson CJ, [37] per Gaudron J, and [69] per McHugh, Gummow and Hayne JJ; NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [16] per Allsop CJ and Katzmann J; and Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at [10] per Basten JA.
9. Although brevity does not necessarily indicate legal error, a reviewing court is entitled to approach the reasons of an administrative decision-maker as wholly reflective of its reasoning process: Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [65] per Mortimer J.
10. The usual judicial cautions against construing reasons with an eye keenly attuned to the perception of error are not appropriate in this case as there is a clear absence of identification of the relevant considerations rather than some criticism of the manner of expression: see for example Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
11. In order to determine whether relevant matters have been taken into consideration, it must generally be apparent from the reasons that there has been an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation sufficient to warrant the description of the matters being taken into consideration: Wattie v Industrial Relations Secretary on behalf of Secretary of the Department of Justice (No 2) [2018] NSWCA 124 (Wattie) at [154] per McColl and Macfarlan JJA agreeing; and Azriel v NSW Land & Housing Corp [2006] NSWCA 372 at [49] per Basten, Santow and Ipp JJA agreeing. A formalistic reference is not sufficient: Wattie at [154]. In this case, there was no reference, let alone a formalistic reference.
12. Whilst there may be some debate as to what subject matter the reasons should address the answer should be derived from the statute. In this case, the Heritage Act sets out the matters that the Minister must take into account in making the decision to list or not list and to that extent the minimum requirement for subject matter of the reasons must be to address those factors that have been identified as mandatory considerations. By failing to include a reference to the two mandatory relevant considerations in the reasons for the decision, the only available inference is that the Minister failed to take those matters into account in the making of the relevant decision to list the MLC Building.
13. The Minister, having failed to refer to the two mandatory considerations that were real issues in the consideration of this particular case, has failed to take into account mandatory relevant considerations. The failure to take such matters into account would have a material effect on the decision in that it is clear that the Court could only fairly be satisfied that a different decision could have been made if the provisions of s 32(1)(c) and s 32(1)(d) had been considered: see MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at [39]. Consequentially, the Applicant is entitled to the declaration and orders it seeks in the Summons.

Heritage Council's submissions

1. The onus is upon the Applicant to establish that a mandatory relevant consideration was not considered by the Minister.
2. Whether or not a decision-maker failed to consider a particular matter is a question of fact. That question of fact, like all questions of fact, must be determined by reference to the totality of the evidence. As was stated by Perry J (referring to a number of appellate decisions) in AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 168 ALD 331 in respect of an allegation of failure to consider (at [60]): [E]ach case will necessarily turn upon its particular facts and circumstances and requires a court exercising supervisory jurisdiction to engage in a qualitative assessment, taking into account the available evidence and reasonable inferences as to all the relevant facts and circumstances of the case.
3. In this case, the Applicant is impermissibly seeking to limit the sole consideration of the evidence to the Minister's reasons and, thereby, disregarding the totality of the evidence. Such an exercise is fundamentally misconceived and circumvents the necessary factual inquiry as to what the Minister did consider in making the relevant decision. This constraint is impermissible, and a finding based upon it must fail.
4. A finding that the Minister did not consider something he should have is not to be made lightly and "must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Carrascalao) at [48] per Griffiths, White and Bromwich JJ; see also AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 168 ALD 331 at [60] per Perry J (emphasis added); and GBV18 v Minister for Home Affairs (2020) 274 FCR 202 at [32] per Flick, Griffiths and Moshinsky JJ.
5. In undertaking the fact-finding process, the Court cannot overlook the broader context. That context includes any materials (such as a briefing note) provided to the Minister: Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [70]; and Cunliffe v Minister for Immigration and Citizenship (2012) 129 ALD 233 at [116]-[119]. See for example City of Botany Bay Council v Minister for Transport and Regional Development (1999) 106 LGERA 287 where the conclusion was reached that a mandatory consideration was considered "having regard to the material that the Minister for the Environment stated that he did consider" as well as "his statement of reasons for his decision" and the statements in it (at [16] per Black CJ, Lee and Weinberg JJ). See also Australians for Sustainable Development Inc v Minister for Planning (2011) 182 LGERA 370 at [248]-[250], where a mandatory consideration was considered having regard to the assessment report provided to the decision-maker and the contents of the documents before the decision-maker.
6. It also includes what the Minister can be reasonably supposed to be aware of: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403 at [19]-[20] and the statutory framework of a decision of this nature. That statutory context includes the recommendation by the Heritage Council following a prescribed procedure (s 32(1), s 32(2), s 33 and s 34(1)) and review by the IPC (s 34(1)(b), s 34(1A) and s 36).
7. When the totality of the relevant evidence is considered, it is clear that the Minister did consider the matters referred to in s 32(1)(c) and s 32(1)(d). So much is apparent in light of: 1. The contents of the Briefing Note, particularly Attachment 1, and the IPC Referral Briefing Note, particularly Attachment 2; 2. All of the materials provided to the Minister, including: 1. The Heritage Council Recommendation Briefing Note, particularly Attachment 1C; 2. The IPC Report; and 3. Submissions of the Applicant; which drew attention to, and discussed, the matters referred to in s 32(1)(c) and s 32(1)(d). And, in this regard, it should also be recalled that this was not the first time the matter came before the Minister. It had earlier come before him when he decided to direct the IPC to carry out its review, and in that context, attention had also been drawn to these matters in the associated Briefing Note (in particular, the Applicant's position as to them).

Findings on Ground 1

1. There is no dispute between the parties that the matters enumerated in s 32(1)(c) and s 32(1)(d) were mandatory relevant considerations in the making of a decision to list the MLC Building on the State Heritage Register and, therefore, the Minister was required to consider those matters as part of his decision-making.
2. In order for the Applicant to establish that the Minister failed to take the relevant mandatory considerations into account it is necessary to determine as a question of fact whether the Minister did not relevantly consider the identified mandatory relevant considerations.
3. In the context of judicial review "consider" means that the Minister must engage in an active intellectual process directed at the mandatory criteria: Carrascalao at [45].
4. Whether there has been such a failure to undertake the necessary consideration of the mandatory considerations requires an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of the case. These include, but are not limited to, the nature and volume of material placed before the Minister to assist in the decision-making as well as other matters relevant from the statutory context: Carrascalao at [47].
5. In this context it is also relevant to bear in mind that a finding that the Minister has not undertaken the necessary consideration of the mandatory considerations will not be lightly made and must be supported by clear evidence, bearing in mind that it is the Applicant that carries the onus of establishing the failure: Carrascalao at [48].
6. There being no direct evidence from the Minister, or any person involved the Minister's decision-making as to the Minister's actual consideration of the factors that lead to his decision or the process undertaken by him in the decision-making, it is necessary to determine those facts from the available documentary material (being the only evidence available). If there is no direct evidence that expressly identifies the matters that the Minister in fact took into account in the making of the decision then it is necessary to consider what, if any, inferences can be drawn from the documentary material. In that respect where it is contended an inference should be drawn, such an inference must draw upon objective ascertainable facts and not mere speculation. The test as to the reasonableness of the drawing of an inference was formulated in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [84]-[88] by Spigelman CJ in the following terms: 84 It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists. 85 Lord Macmillan in Jones v Great Western Railway Co (1930) 144 LT 194, in the context of stating that a possibility that a negligent act caused injury was not enough, said (at 202): "The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference." 86 After referring to this passage, Sir Frederick Jordan in Carr v Baker (1936) 36 SR (NSW) 301 at 306 said: "The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible." 87 As Lord Wright put it in a frequently cited passage in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170: "Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some case the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture." 88 The test is whether, on the basis of the primary facts, it is reasonable to draw the inference: see, eg, Luxton v Vines (1952) 85 CLR 352 at 358.
7. The Applicant contends that the Court would draw the inference that the Minister did not consider the mandatory considerations in the relevant sense from a consideration of the Reasons, which Reasons the Minister was required by s 34(4) to provide. From the Reasons that the Minister did provide it would be concluded that the Minister failed to take the relevant matters into consideration as the Reasons make no reference to such considerations. The Heritage Council suggests that such an approach is an impermissible "ring fencing" of the evidence which approach is fundamentally misconceived, and the matter must be decided on the totality of the evidence.
8. For the reasons that follow, I do not accept that the Applicant's approach is fundamentally misconceived. As a general proposition, where reasons are given, it is appropriate that they be regarded as what they purport to be: a statement of the reasons for the decision. As was observed in Bat Advocacy NSW Inc v Minister for the Environment Protection, Heritage and the Arts (2011) 180 LGERA 99 at [46]-[47]: 46 A statement of reasons given by a decision maker can constitute evidence of the material put before the decision maker, the way in which that material has been dealt with and the reasons for which the decision was made. A failure to include reference to a matter in a statement of reasons may justify the inference that, as a matter of fact, the matter was not taken into account. Thus, a statement of reasons may be accepted as evidence of the truth of what it says, namely, that the findings made and the evidence referred to and the reasons set out are as stated in the statement of reasons. It can be accepted as evidence that no finding, evidence or reason that was of any significance to the decision has been omitted (see Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 at 179 and 182). 47 A statement of reasons under s 13 of the Review Act does not require a decision-maker to pass comment on all of the material to which his attention has been drawn and to which he has had regard. What the provision requires is that the decision-maker set out his or her findings on "material questions of fact". While a failure to include a matter in a statement of reasons may justify a court inferring, as a matter of fact, that the matter was not taken into account, such an omission is not necessarily conclusive (see Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 485). Whether that inference will be drawn in a particular case will depend on all the circumstances (see ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 10 FCR 197 at 205).
9. Accordingly, where reasons are given the question of whether the inference will be drawn will depend upon whether there is other available evidence to preclude a finding that the inference can be drawn. Whilst perhaps a fine distinction the examination of the totality of the evidence and circumstances is to determine whether the inference that the Reasons are in fact a statement of the matters taken into account is open on the evidence. The Applicant's approach therefore is not an inappropriate ring fence of the evidence but a submission that there is no evidence that would preclude the proper drawing of the inference based upon the Reasons.
10. In cases where reasons are given for the making of an administrative decision the reasons are taken to be a statement of the matters that the Minister took into account in the making of a decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323 at [10]; NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [16]. If a matter is not mentioned in the reasons, generally and subject to a contrary finding of fact, it may be inferred that the omitted matter has not been taken into account: Wattie at [151]-[154].
11. The Applicant urges an inference to be drawn that the Minister, by failing to make reference in the Reasons to the mandatory considerations, failed to take such matters into account in the making of the decision. For the reasons that follow, I accept the Applicant's argument that the inference should be drawn that the Minister failed to consider, in the necessary sense, the mandatory relevant considerations required by s 32(1)(c) and s 32(1)(d).
12. The requirement for reasons and the nature of the reasons to be given is to be derived from the statutory language of s 34(4) having regard to the context derived from the whole of the Act. From the text of the provision considered in context I find that the obligation to give reasons is an obligation that requires the Minister to expose through the reasons his decision-making, in the sense that the reasons must include a reference to the mandatory relevant considerations dictated in s 32(1). This is particularly so in the legislative context of the Heritage Act as the mandatory considerations provide for competing considerations of heritage protection and managing financial and economic impacts upon landowners. The inherent conflict of those mandatory considerations highlights the importance of the Minister at the very least identifying why he resolved the conflict one way or the other.
13. Further indicia that the reasons required by s 34(4) require at the very least reasons relating to the consideration of the mandatory considerations in s 32(1) include: 1. The relevant provision operates in the circumstances of both a direction to list and a direction not to list an item on the State Heritage Register. There being no distinction between a positive and a negative decision suggests that the purpose of the reasons is to expose the Minister's decision-making process in all decisions; 2. The requirement that the "decision" is to "contain" the reasons also provides a direct link between the making of the decision and the reasons for the making of that decision; and 3. There is no legislative object or intent that the reasons serve some other or lesser purpose than exposing the Minister's reasoning for the decision to list or not to list. The objects and the Act as a whole do not identify a purpose that would justify the giving of some lesser reason - the inclusion of the requirement for reasons as part of the decision-making process, where that appears in the Part of the Act dealing with the State Heritage Register where listing or not listing an item has the potential to have great consequences to the owner if listed or the public if not listed speaks against a lesser requirement.
14. The importance of reasons was considered in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [47] (Singh) where it was stated: …we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The "intelligible justification" must lie within the reasons the decision-maker gave for the exercise of the power - at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court.
15. Whilst in Singh the consideration of the reasons was for the purpose of determining whether the decision was legally unreasonable, I consider that such an observation is equally applicable when considering the nature of reasons and what such reasons should encompass where the giving of reasons is required in administrative decision-making such as those required by s 34(4).
16. The submissions as to construction raised by the Heritage Council are not compelling of a contrary construction. I do not accept that the reasons required to be provided pursuant to s 34(4) are something other than the reasons for the Minister's decision in that it was suggested that the legislative requirement was for "a brief statement reflecting key propositions supporting ("for") the listing of the item on the State Register". The provisions of s 34(4) are directed to the making of the decision and the reasons for such decision. Such is made apparent by the requirement that the "decision…is to contain the reasons", the relationship between the making of the decision and the provision of reasons can only serve to indicate that the reasons are to expose that reasoning.
17. Further, the requirement to give reasons is triggered by the making of a decision rather than the outcome of that decision, that is, reasons must be given for a decision to direct listing or not to direct listing. The obligation to give reasons must serve the purpose of exposing the consideration of the Minister in why a particular decision was made, else the requirement for the giving of reasons not to direct listing would serve no purpose as it could not reasonably fall within what the Heritage Council contends would be "a brief statement reflecting key propositions supporting ("for") the listing of the item on the State Register". The use of the term "for" in that context suggests support for listing, whereas the obligation arises in circumstances where there is no such support "for" listing.
18. Accordingly, I do not accept that the reasons required by s 34(4) do not require the Minister to state the reasons for the decision having regard to the mandated considerations of s 32(1) and s 34(2) such that I would decline to draw the inference contended for by the Applicant.
19. The Heritage Council also submitted that from a fair reading of the Reasons themselves that the inference should be drawn that the Minister did not intend for the Reasons to be a comprehensive statement of the reasons for the decision thereby weighing against the inference contended for by the Applicant. As there is no direct evidence of the Minister's decision-making, inferences must be drawn from the documents. The text of the Reasons does not lend itself to such an inference. The Reasons are identified in terms as "reasons for decision to list" and there is no express or implied qualification to that characterisation.
20. The Heritage Council also submitted that the evidence was that the Briefing Note considered by the Minister contained a detailed discussion of the statutory matters the Minister was required to take into account such that "it strained credulity to suggest in light of the full contents of the Briefing Note the Reasons were intended to be comprehensive of the matters considered". Dealing with this submission requires a consideration of the Briefing Note and its attachments.
21. The notion that the Minister, notwithstanding a statutory obligation to give reasons, can "intend" to do less than required is challenging. To accept this submission is to accept that the Minister intentionally acted in breach of his obligation to give reasons by giving reasons that were legally insufficient to meet the requirements of s 34(4). In order to accept that such was the Minister's intention would, in light of the potential consequences of holding such intention, require clear and compelling evidence. Such evidence is not available in this case, not even if the documents to which the Heritage Council refer are considered. What is apparent is that the Minister was directed in terms to the requirements of s 34(4) "to give reasons for his decision to direct or not direct an item be listed on the State Heritage Register". Such statement appears both on the Reasons document to which the Minister affixed his signature and the "statutory considerations" document that was attached at Attachment 1. Neither of these statements could justify an inference that the Minister was intending to provide reasons other than the reasons for the making of his decision.
22. To the extent that the Heritage Council suggests the "full contents" of the Briefing Note indicate that the Minister did in fact consider something more than that indicated in the Reasons, such a finding requires not only an inference that the Minister had the material before him, or even that he read that material, but rather that the Minister "considered" (in the sense to which that term refers as identified at [63] above) the material in the context of the mandatory relevant considerations. For the reasons that follow, such an inference is not available on a fair reading of the Decision Documents.
23. Firstly, the Briefing Note itself did not contain a detailed discussion of the statutory matters that the Minister was required to take into account. As can be observed from the text of the Briefing Note there is no reference in terms to the mandatory matters for consideration. Where the Briefing Note identified "key issues", to the extent that such issues related to the mandatory considerations, it did no more than identify in broad terms the existence of the Applicant's objection to listing and the observation that "The Minister would need to consider these grounds if making a decision to direct the listing under s 32(1) of the Act" together with the statement that "Further exploration of the key issues" in relation to this listing were contained in Attachment 1.
24. To the extent that the Heritage Council's submission requires an inference that the Minister did in fact have regard to the contents of Attachment 1 in making his decision there is no direct evidence that the Minister did in fact consider Attachment 1 nor does it bear any markings from which such an inference could readily be drawn. Notwithstanding, I am prepared to infer that the Minister did have regard to Attachment 1 in the making of his decision as the Minister placed a tick next to the reference in the Briefing Note options section to the first option which in terms references the issues, at least in part, referenced in Attachment 1 and that the key issues section of the Briefing Note in terms directs the Minister to Attachment 1.
25. However, even if the contents of Attachment 1 are read they do not support the submission that the Reasons were not intended to be a statement of the Minister's considerations in the decision-making. Attachment 1 sets out what are said to be the relevant factors for consideration. Against each of the considerations identified as they relate to the s 32(1) considerations, the author provides an observation and states words to the effect of "it is open to the Minister to conclude" and then a reference to the relevant consideration. At the conclusion of such identification of the consideration the author identifies the Minister's obligation to give reasons and "suggests" the formulation of the Reasons that the Minister ultimately adopts and observes (emphasis added): "A copy of the Reasons is attached for signature and publication if the Minister accepts this reasoning". The form of Attachment 1 and the reference to the acceptance of "reasoning" does not speak of a statement of reasons that was not intended to disclose the Minister's reasoning as it relates to the mandatory considerations. Both in text and context a reading of Attachment 1 supports the Applicant's submission that the inference should be drawn that the absence of a reference to the mandatory consideration in the Reasons evidences a failure to take into account that relevant consideration.
26. Further a reading of Attachment 1 does not disclose that the Minister in fact considered the mandatory considerations such that it would operate to suggest the existence of a fact that would preclude the drawing of the inference. The opening comments set out background matters and observes (emphasis added): If the Minister reaches a preliminary view that he is minded to accept the Heritage Council recommendation and approve the listing of the MLC Building, North Sydney, then the following matters under the Heritage Act must be formally considered to finalise that decision.
27. What seems to be suggested is that a decision to list is made and the consideration of the mandatory considerations are a formality necessary to enable that decision to be finalised (or implemented). If that was what was intended by those words, they fail to bring to the Minister's attention the essential nature of the consideration to be undertaken. The relevant considerations are not a formality to enable a preliminary decision to be implemented - they are the essential considerations to determine whether a listing should be made at all irrespective of the recommendations to list made to the Minister by the Heritage Council.
28. The relevant factors are then contained in the table with the preamble stating: Section 32(1) of the Heritage Act provides that the Minister may direct that an item be listed on the SHR, but only if the six preconditions below are met. If any of the six preconditions are not met, the Minister cannot direct that the item be listed on the SHR.
29. Thereafter, the six "preconditions" are identified as: s 32(1), that the Heritage Court has recommended that the item be listed; s 32(1), that the Minister is satisfied the item is of state heritage significance; and the four mandatory considerations under s 32(1)(a)-(d). Whilst it is true that the requirement of s 32(1) is a precondition in that it requires a state of affairs to exist before the exercise of the power, the balance of the matters all require the Minister to have considered the mandatory considerations and made a decision based upon that consideration (s 32(1)).
30. The text of the table of considerations that related to s 32(1)(c) and s 32(1)(d) provided:
31. What is apparent from these sections is that the author has not provided a summary of the issues such that the Minister can intellectually engage with the subject matter of the issues raised by these considerations. Rather the author has summarised the position of a single party, the Heritage Council, and referenced the Heritage Council's earlier report recommending listing. It identified what the Heritage Council's concluding opinion was upon a consideration of the material without identifying the reasoning process or foundation for arriving at such opinion or expressing or summarising the Applicant's contrary position. Thereafter, the author opines that on the basis of the Heritage Council Recommendation and consideration, "it is open to the Minister to conclude" that the two mandatory considerations have been negatived. By that comment the Minister is either being encouraged to allow the Heritage Council to carry out the necessary consideration of the mandatory considerations and adopt it without exercising his own mind or it is suggesting that there is evidence that would allow such a conclusion without providing sufficient material to permit a finding of a negative conclusion. Neither proposition is sufficient to discharge the Minister's obligation to consider the mandatory relevant considerations himself. The Minister is required to make the decision and purported to do so in which case the opinion of the Heritage Council cannot operate as a substitute for the Minister undertaking the task himself, nor is the task to determine whether there is evidence to support a listing in substation of determining whether on the material available a listing is warranted after the consideration of each of the mandatory relevant considerations.
32. From the material provided to the Minister in the Briefing Note and Attachment 1 there is no evidence that the Minister relevantly considered the two mandatory relevant considerations such that the inference that he failed to do so should not be made.
33. The final document that the Heritage Council submits contributed to the Minister's decision-making is the IPC Report that was attached to the Briefing Note. Again, there being no direct evidence that the IPC Report was considered by the Minister in the making of the relevant decision, it is necessary to draw inferences from the documentary material. For the reasons that follow, I accept the submission of the Applicant that there is no basis to infer that the Minister had regard to the IPC Report as part of his consideration of the mandatory relevant considerations such that there is evidence that speaks against the drawing of the inference contended for by the Applicant.
34. The evidence discloses that the IPC Report was attached to the Briefing Note and to that extent I am prepared to infer that the Minister was aware that the IPC Report had been completed and delivered to him. Such an inference is consistent with the additional evidence of the letter from the IPC addressed to the Minister delivering the IPC Report. However, such a factor is not evidence that the content of the IPC Report was part of the Minister's decision-making, such a fact, if available, must be inferred from the evidence available. The evidence does not support the making of such an inference, the evidence supports the drawing of the inference that it did not form part of the Minister's decision-making.
35. Firstly, apart from the noting of its existence, the IPC Report was not referred to in any material way in the Briefing Note. The only substantive reference to the IPC Report was the statement that: It is noted that the IPC has found that the Heritage Council has demonstrated that the MLC Building is of State Significance and should be listed on the SHR.
36. Attachment 1 made no reference to the IPC Report in substance. To the contrary, to the extent that Attachment 1 made any reference to material substantiating the opinions of the author, it was to reports of the Heritage Council and peer review reports commissioned by the Heritage Council (and which were previously contained in the Heritage Council Recommendation Briefing Note), which preceded the IPC Report. It is also of relevance that Attachment 1 did not identify the mandatory requirement of s 34(2)(a) to consider the IPC Report as part of the Minister's decision-making. The requirement was absent from the "relevant factors for consideration" section of Attachment 1, it was not identified in the reasons formulated in the "decision" section, and in the decision section, Attachment 1 expressed:
37. This complete absence of reference to the substance of the IPC Report and the role that it was required to play in the Minister's decision-making and the extent to which it may have assisted the Minister in doing so does not evidence a consideration of the material. Rather the documentary evidence is in favour of the drawing of the inference that the Minister, whilst aware of the existence of the IPC Report, did not take the IPC Report into consideration in the determination of whether to list the MLC Building such that it would be open to find that the Minister, by reference to the content of the IPC Report, considered the mandatory considerations in that he intellectually engaged with the subject matter of those considerations.
38. The Heritage Council also relied upon the Minister's knowledge of the subject matter from earlier briefings to suggest that the inference should not be drawn. Whilst such earlier briefings are capable of indicating a general knowledge of the topic and the basis for the Applicant's objection to the proposed listing, they do not indicate a knowledge of sufficient particularity to displace the inference to be drawn from the Reasons. The Heritage Council Recommendation Briefing Note was not signed by the Minister and there is no indication from that document as to the extent that the Minister considered it or its annexures. However, it is apparent that the Minister declined to direct the listing of the MLC Building. An inference cannot be drawn from this Briefing Note that the Minister engaged with the mandatory relevant considerations at this time such that the inference that he did not relevantly consider them as they are not referenced in the Reasons should be displaced. Even if the Minister had developed a detailed knowledge of the issues from this briefing the information available at this time was later supplemented by the Applicant and the Heritage Council in the process of the IPC Report such that it would be necessary to reacquaint himself with the subject matter in order to determine whether any consideration of the material that formed part of this briefing had altered.
39. The letter from the Applicant dated 18 February 2021 identified the nature of the objection to the listing and the dissatisfaction with the manner in which the Heritage Council had considered the proposal to list, including allegations of certain members of the Council having undisclosed conflicts of interest. Again, whilst such correspondence would bring a general degree of knowledge of the broad subject matter it is insufficient to prevent the drawing of the inference that the mandatory considerations were not taken into account due to the content of the Reasons as it contained no foundation that indicated that the Minister had engaged with this letter in any material way.
40. The IPC Referral Briefing Note was signed by the Minister approving the referral to the IPC and not adopting the other recommendations in the briefing. The referral to the IPC was recommended in the briefing as: Given the owner's objections, DPC Legal Branch's preliminary assessment is: there is a significant risk the owner would seek to challenge a decision of the Minister to direct the listing without an opportunity to put forward further submissions in response to the material considered by the Heritage Council (see further detail below under 'Consultation') and for those submissions to be considered. To ensure the owner has a further opportunity to be heard and there is an independent review of the overall matter before a decision is made, it is recommended that the Minister refer the matter to the IPC. The owner is entitled to appear before the IPC under s 36(1) of the Act.
41. The Attachment 2 issues document that was referred to as "further exploring the key issues" identified the reasons for the referral to the IPC as: Recommendation to refer this listing matter to the Independent Planning Commission The owner of the item, IOF Custodian (lnvesta), has strenuously objected to the proposed listing in a presentation to the Heritage Council (18 August 2020), prior to the statutory listing process commencing and in a submission received during the period the Heritage Council advertised its Notice of Consideration to list the MLC Building, North Sydney (former). Legal representatives of the owner have made a GIPA request for documents pertaining to the State Heritage Register listing of the item. DPC GIPA team has requested that the scope of the GIPA be refined but it is expected that a response will be received in the near future. It is understood the owners have made representations to other parties around issues of procedural fairness, particularly in relation to them not having had an opportunity to respond to the issues raised in the peer review reports considered by the Heritage Council. This, together with the terms of the objections raised by the owner in its submissions, suggests a strong possibility that a decision to list may be challenged. In addition, the proposed listing has implications for the development of the North Sydney CBD and there needs to be independent consideration of the delicate balance between the heritage protection of this significant building and the needs of the North Sydney community and the area's economic development. Review by the Independent Planning Commission will assist the Minister in making his decision by ensuring that the owner and other interested stakeholders have every opportunity to present their case on the listing and all issues are considered including the balance between heritage protection and development benefits to the community.
42. Such detail does not engage with the substance of the objection or the Minister's decision-making. Rather, the focus appears to be on the protection of any future decision from challenge. This Briefing Note does not evidence that the Minister was accruing and building knowledge relevant to the consideration of the necessary mandatory matters for his ultimate decision-making. This Briefing Note is directed to an ancillary consideration to the Minister's decision-making.
43. What can be drawn from the context or prior dealings upon which the Heritage Council refers is that the Minister may have had a general knowledge of the subject matter relating to the proposal to list the MLC Building. However, general knowledge is not enough to demonstrate that his combined knowledge was sufficient to indicate (either alone or in conjunction with the Decision Documents) that he intellectually engaged with the mandatory relevant considerations required by s 32(1)(c) and s 32(1)(d) or was able to do so when he exercised his powers when directing the listing. The process of consideration required more than a general understanding of the subject matter, it was necessary that the Minister engaged in the process of consideration of the mandatory considerations sufficient to resolve what were, in this case, the inherently conflicting considerations of heritage protection and the economic and financial impacts on the landowner of such a listing. There is nothing in the surrounding context that indicates that such a reasoning process was undertaken in the necessary sense such that it operates to preclude the Reasons from being taken to be an expression of the Minister's reasoning. The Reasons do not disclose the resolution required by s 32(1) and the inference to be drawn is that the Minister did not undertake the mandatory consideration of all of the factors dictated by s 32(1).
44. The Heritage Council submitted that the Minister should be taken to understand the legislation such that he should be taken to have understood and properly discharged his role in the decision-making required by s 32(1). Some caution needs to be taken with respect to this submission as it seems to suggest that an inference of failure to take a mandatory consideration into account can never be made as the Minister must be assumed to have made the decision within the bounds of their authority, this cannot be so. Whilst in some cases some evidence or inference may be drawn that demonstrates that whilst the Minister's reasons say one thing, he in fact was doing something more, that is why an inference will not be drawn that those reasons comprise the totality of the reasoning if there is evidence to the contrary. In this case, the Heritage Council does not provide any evidence to suggest that the Minister did have a specialist or otherwise complete knowledge of his obligations over and above that provided for in the Briefing Note and Attachment 1 or that he was in fact exercising his power within the statutory limits notwithstanding his statement of his reasons. For those reasons, I am unable to draw any inference that assists the Heritage Council in resisting the inference contended for by the Applicant.

Conclusions and orders

1. For the reasons outlined above, I find that the Reasons signed by the Minister are an expression of the totality of the matters that the Minister took into account in the making of the decision to direct the listing the MLC Building on the State Heritage Register. Having regard to the Reasons, I find that the Minister failed to consider the mandatory relevant considerations as required by s 32(1)(c) and s 32(1)(d). By failing to take those matters into account the Minister acted in breach of his obligations in a material way in connection with the making of the decision to direct the listng and as such the decision of the Minister to direct the listing of the MLC Building on the State Heritage Register was invalidly made.
2. In light of my findings on Ground 1 of the Applicant's claim, the remaining Grounds 2 to 9 do not arise. The consequence of my finding is that the Minister did not fail to give reasons as raised in Ground 2 and did not take the nominated material referred to in Grounds 3 to 9 into account in his decision-making.
3. For those reasons, the Applicant is entitled to the declaration and orders sought at [1]-[3] of its Summons dated 27 August 2021 and I will make those orders, with some changes as to the form of the declaration and orders.
4. As to costs, the Minister made a submitting appearance save as to costs. In the ordinary course costs would follow the event. The parties requested that I reserve costs so that any discussions that may potentially involve the Minister may be undertaken upon receipt of my reasons and I will reserve costs and make directions in the event that costs of the proceedings are disputed.
5. The Court: 1. Declares that the First Respondent's decision to direct the listing of the MLC Building, North Sydney on the State Heritage Register is invalid and/or of no effect; 2. Orders that the Minister's decision to direct the listing of the MLC Building, North Sydney (former) at 105-153 Miller Street, North Sydney on the State Heritage Register be set aside; 3. Orders that the Heritage Council to remove the listing of the MLC Building from the State Heritage Register; 4. Costs are reserved; and 5. The exhibits are returned. The parties are to collect the exhibits from my Associate within 14 days of the date of these orders.
6. The Court directs that: 1. Liberty is reserved to the parties to make an application for costs as referred to in order [109(4)] above. Any such application is to be made by contacting my Associate within 21 days of the making of the orders for the purposes of listing the matter for directions and the fixing of a date for hearing relating to costs; and 2. Prior to exercising the liberty referred to in (1) above any party making any such application should notify all other parties of the application including the First Respondent.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2022