Mackenzie v Head, Transport for Victoria

PRACTICE AND PROCEDURE - Application to amend application for leave to appeal - Application granted.

1 On 16 February 2021, at a mention of the proceeding, the Court dismissed an application by the applicants, MairiAnne Mackenzie, Iona Mackenzie ('the Mackenzies') and Keep The Original Route Supporters Inc, to adjourn the hearing of an application for leave to appeal from a decision of Richards J[1] fixed to be heard on 1 and 2 March 2021 ('the Mackenzie appeal'). The first respondent, Head, Transport for Victoria ('VicRoads')[2] and the second respondent, the Minister for Planning ('the Planning Minister'), opposed the adjournment. At the mention, the applicants also sought to amend their application for leave to appeal by adding additional grounds of appeal. This was ultimately not opposed. The Court granted leave to amend.

1. The applicants' application to adjourn the hearing on 1 and 2 March 2021 filed 12 February 2021 is dismissed.
2. The applicants pay the respondents' costs of the application to adjourn on the standard basis.
3. The applicants' application to amend the application for leave to appeal, in the form filed by the applicants on 12 February 2021, is granted.
4. The respondents have leave to file and serve a supplementary written case in reply of no more than three pages by 4:00pm on Monday 22 February 2021.

5. The applicants file and serve:

(a) an agreed index to the leave application book by 4:00pm on Thursday 18 February 2021; and

(b) an agreed index for any supplementary leave application book by 4:00pm on Friday 19 February 2021.

6. The applicants deliver to the Registrar and serve on the respondents:

(a) a completed leave application book and summary by 4:00pm on Monday 22 February 2021; and

(b) if the applicants intend to rely upon additional documents beyond those in the application book, a completed supplementary leave application book confined to matters relevant to the additional grounds of appeal, by 4:00pm on Wednesday 24 February 2021.

7. Upon any failure to comply with Order 6(a), within the time fixed:

(a) the application for leave to appeal shall be dismissed, without further order; and

(b) the applicants shall pay the respondents' costs of the application for leave to appeal on an indemnity basis.

8. There be liberty to apply.

3 We indicated that we would deliver written reasons for the orders we made on 16 February 2021. These are those reasons.

4 The proceeding before Richards J in the Trial Division was a proceeding for judicial review. The applicants commenced the proceeding in October 2016. Richards J refused to grant the applicants the relief they sought in respect of the legality of certain decisions made by the Planning Minister in relation to Stage 2 of the duplication of the Western Highway. Stage 2 relates to the duplication of the highway between Beaufort and Ararat. It is part of a larger project to duplicate the highway between Ballarat and Stawell, an upgrade of the highway to a four-lane divided road. The applicants sought declarations of invalidity in respect of three decisions of the Planning Minister to the extent that the decisions apply to Section 2B of the Stage 2 works between Buangor and Ararat ('the Section 2B works'), an area about 12.5 km in length. They further sought declarations that it is unlawful for VicRoads to proceed with the Section 2B works.[3]

5 The applicants sought an adjournment of the Mackenzie appeal until a date convenient to the Court and the parties following the hearing and determination of another proceeding in the Trial Division brought by a different plaintiff, Marjorie Thorpe ('the Thorpe proceeding'). Marjorie Thorpe ('Thorpe') is a Djab Wurrung woman who is seeking to protect the Aboriginal cultural heritage of the area impacted by the Section 2B works. The Section 2B works travel within Djab Wurrung traditional land. The Thorpe proceeding is directed at ensuring compliance with the Aboriginal Heritage Act 2006 ('the AH Act') in the protection of Aboriginal places. Thorpe seeks to restrain VicRoads, the Minister for Transport Infrastructure, the Secretary, Department of Transport and the State of Victoria from constructing or completing the Section 2B works. An interlocutory injunction was granted by Forbes J in the Trial Division on 3 December 2020 in accordance with which the Section 2B works have ceased.[4] The hearing in the Thorpe proceeding is listed to commence on 26 April 2021 on an estimate of 10 to 15 days.

6 In summary, we dismissed the application for an adjournment on the basis that although the Mackenzie appeal and the Thorpe proceeding relate to the same area, and the same works, the Section 2B works, nevertheless they raise largely independent issues. The applicants ultimately could not submit, and, more importantly, could not establish, that a determination in the Thorpe proceeding would be decisive for the Mackenzie appeal, or would render the Mackenzie appeal futile. It was a matter of speculation as to any impact an outcome in the Thorpe proceeding might have on the Mackenzie appeal. The applicants' submission was ultimately that it would be 'better' for the Court that hears the Mackenzie appeal to have the benefit of the findings and the judgment in the Thorpe proceeding. It was unclear precisely how any of those findings might affect an assessment of the validity of the Planning Minister's decisions taken in 2013 and 2017.[5] We considered that to give effect to the overarching purpose of the Civil Procedure Act 2010, namely, to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute, and in accordance with modern case management principles,[6] there ought be no further delay in this proceeding and the Mackenzie appeal ought be heard on 1 and 2 March 2021, as scheduled.

7 In 2010, VicRoads sought the Planning Minister's advice about whether an Environment Effects Statement ('EES') under the Environment Effects Act 1978 ('the EE Act') should be prepared for the Stage 2 project of the duplication of the Western Highway between Beaufort and Ararat.

8 On 27 October 2010, the Planning Minister advised that it was necessary for an EES to be prepared and he wrote to VicRoads, the Minister for Roads and Ports, and to the Ararat Rural City Council and the Pyrenees Shire Council giving notice to that effect under s 8B(4)(a)(i) of the EE Act.[7]

9 In September 2011, the Planning Minister published scoping requirements for preparation of the EES. In September 2012, VicRoads published its EES ('the VicRoads EES') in which it presented two options for the Stage 2 road alignment and expressed a preference for Option 2.

10 The Mackenzies owned land in the Mt Langi Ghiran area, adjacent to the Western Highway, south of the Langi Ghiran State Park. Option 1 'contemplated a new road through their properties, and involved compulsory acquisition of parts of their land', while Option 2 'also affected their land, but to a lesser extent'.[8]

11 Following an inquiry and public hearings in December 2012 before a Panel appointed by the Planning Minister, during which the Mackenzies put in written submissions proposing a 'Northern Option' close to the existing highway, in February 2013 the Panel recommended adoption of Option 1.

12 In May 2013, the Planning Minister published his Assessment of Stage 2 under the EE Act and chose Option 1. He had regard to the VicRoads EES, the Panel's report and submissions, and determined that Option 1 'provides a more appropriate balance between the likely environmental effects, social and economic outcomes'.[9] On 21 October 2013, the Planning Minister adopted and approved Amendment C27 to the Ararat Planning Scheme. The amendment applied a Public Acquisition Overlay over land required for the Stage 2 project, including parts of the Mackenzies' land. (That acquisition occurred in August 2015.) It also incorporated a document in the Ararat Planning Scheme, which permitted works associated with construction of the Stage 2 project, including the removal of native vegetation.

13 In November 2015, VicRoads issued a media release stating that its initial estimate of large old trees ('LOTs') to be removed for the Stage 2 project along the Option 1 alignment had been underestimated ('the LOT error').

14 By May 2016, Section 2A of the Stage 2 project was completed.

15 In October 2016, the applicants commenced a proceeding in the Supreme Court seeking interlocutory injunctions against the respondents on the basis that because of the LOT error, the Planning Minister's assessment of Stage 2 under the EE Act and the approval of Amendment C27 in 2013 were invalid. Emerton J refused to grant interlocutory injunctions on 22 November 2016[10] and listed the matter for trial in early 2017.

16 In February 2017, VicRoads became aware that the Amendment C27 incorporated document had expired. The Section 2B works immediately stopped and the trial date was vacated.

17 On 2 June 2017, VicRoads wrote to the Planning Minister asking him to prepare another amendment to the Ararat Planning Scheme, explaining that the approval was required because of the expiry of the previous incorporated document and the need to reinstate the planning authority in order for the Section 2B works to recommence.

18 On 17 December 2017, having regard to materials provided by the Department of Environment, Land, Water and Planning, the Planning Minister decided to exempt himself under s 20(4) of the Planning and Environment Act 1987 ('the PE Act') from the requirements of ss 17 to 19 of the PE Act. At that time the Planning Minister also adopted and approved Amendment C37 to the Ararat Planning Scheme. The result was that the Section 2B works recommenced in January 2018. However, the works paused for some months in June 2018 because of protests in relation to six trees of cultural significance.

19 The Mackenzie proceeding was reconstituted in light of the Planning Minister's decisions on 17 December 2017, and further and better particulars were filed in October 2018. The applicants now sought judicial review and declarations in respect of the following three decisions of the Planning Minister:

(a) the Planning Minister's Assessment under the EE Act of Stage 2 of the Western Highway duplication project, published in May 2013 ('the 2013 Ministerial assessment');

(b) the Planning Minister's Exemption Decision under s 20(4) of the PE Act, made on 17 December 2017 ('the Exemption decision'); and

(c) the Planning Minister's Adoption and Approval of Amendment C37 to the Ararat Planning Scheme on 17 December 2017 ('the Approval and Amendment decision').

20 Following a hearing on 23 to 25 March 2020, Richards J delivered reasons for judgment on 4 June 2020 refusing to grant the relief sought.

21 The applicants filed an application for leave to appeal from the decision of Richards J on 31 July 2020. In that application the applicants sought expedition of the Mackenzie appeal on the basis that:

[T]he proceeding concerns the validity of the 2013 Environmental Effects Act Assessment and subsequent Ministerial decisions which concern a sensitive and important environmental landscape containing significant cultural and heritage significance to indigenous communities, local farmers and residents and the State as a whole.

22 The Court acceded to the applicants' request for expedition and listed the Mackenzie appeal for hearing on 1 and 2 March 2021.

23 The issues arising in the Mackenzie appeal include a challenge to the construction of s 8C of the EE Act adopted by Richards J; an assertion that Richards J ignored s 8F of the EE Act; the question of whether certain post-2015 reports ought to have been held to be admissible as actually or constructively before the Planning Minister in making the Exemption decision and the Approval and Amendment decision; a challenge to the conclusion reached by Richards J that the Planning Minister was not required to and did not rely on the 2013 Ministerial assessment in making the Approval and Amendment decision; an alleged breach of procedural fairness; a challenge to the conclusion that the scoping requirements were not an essential feature of the performance of the Planning Minister's statutory task; a challenge to the conclusion that the PE Act did not require the Planning Minister to take into account significant environment effects of Amendment C37 to the Ararat Planning Scheme; the claim that Richards J erred in determining that the Planning Minister was not bound to have regard to the precautionary principle in making the Approval and Amendment decision; and a challenge to the validity of the 2013 Ministerial assessment.[11]

The proceeding for preservation of Aboriginal cultural heritage

24 As mentioned, the Thorpe proceeding is brought against VicRoads, the Minister for Transport Infrastructure, the Secretary, Department of Transport and the State of Victoria. Notably, the Planning Minister is not a party to the Thorpe proceeding and the Thorpe proceeding is not examining the validity of decisions made by the Planning Minister. There is only one common party to the Thorpe proceeding and the Mackenzie appeal, namely, VicRoads.

25 Amongst the final relief sought in the Thorpe proceeding[12] is a declaration that the construction and/or completion of the Section 2B works and any associated works is unlawful. An injunction is also sought over the entirety of a specified area. The relief is aimed at ensuring the protection of Aboriginal places. This includes the protection of six trees which are said to meet the statutory definition of an 'Aboriginal place'. The area 'immediately surrounding' each tree is also said to be an Aboriginal place. There are other ways in which the statutory definition is said to be satisfied.

26 The AH Act makes it unlawful to cause harm to an Aboriginal place unless that harm is, in certain circumstances, permitted. Section 29 identifies the circumstances in which a person who does an act that harms or is likely to harm Aboriginal cultural heritage does not commit an offence. This includes those circumstances where the person is acting in accordance with an applicable approved cultural heritage management plan.

27 In the Thorpe proceeding it is alleged that the Section 2B works are unlawful as they breach the AH Act, in particular because they are not carried out in accordance with a cultural heritage management plan. There is a 2013 Cultural Heritage Management Plan ('the 2013 plan') but it is argued not to apply to any of the Aboriginal places Thorpe has defined (including the six trees of cultural significance Thorpe has identified) nor to be valid. Thorpe also alleges that the Section 2B works are unlawful because they are in breach of the obligation under s 38 of the Charter of Human Rights and Responsibilities ('the Charter') for public authorities to act compatibly with human rights, particularly her cultural rights under s 19 of the Charter.

28 In granting the interlocutory injunction, Forbes J accepted that the Thorpe proceeding raised as a serious question to be tried the construction of s 29 of the AH Act and the extent to which the 2013 plan provides for the lawful harm to cultural heritage that is present but which it does not identify.[13] In particular, Forbes J said:

[T]here is a real question to be tried as to whether Aboriginal places have been identified throughout the area so that the harm that they may suffer is managed to be avoided or minimised in accordance with the [AH] Act, and done so in a way approved by statute and thereby rendered lawful.[14]

29 Forbes J noted that it was not submitted before her that the Western Highway duplication could not occur at all but rather that re-routing and additional regulatory approval would be needed and, perhaps, a further cultural heritage management plan prepared. She said:

It is compliance with the [AH] Act and the validity of the instrument registered under that Act that are in question. Mr Merkel QC did not submit that no further steps under the Act could be taken over the specified area. He did not seek to submit that the duplication of the Western Highway itself should not occur. He submitted, if a degree of re-routing of Section 2B was required even limited to the need to achieve the removal of tree E1, then a further cultural heritage management plan would need approval.[15]

30 There have also been other proceedings in the Federal Court relating to the effect of the construction and alignment of a section of the Western Highway between Ararat and Buangor on the area and certain trees of special Aboriginal significance. In particular, on 17 December 2020, Griffith J, in Onus v Minister for the Environment,[16] found that the Commonwealth Minister for the Environment had fallen into jurisdictional error in refusing to make a declaration for protection pursuant to s 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) ('the ATSIHP Act') and directed the Minister to refer the s 12 application for reconsideration and determination according to law by another Minister with responsibility for administering the ATSIHP Act.

31 It is unclear exactly what relevance the Federal Court proceedings have to the Mackenzie appeal, or their interaction with the Thorpe proceeding, save perhaps for an indication that re-commencement of the Section 2B works is currently delayed in any event. It was submitted by the applicants that the Section 2B works cannot proceed without a fresh determination by the Minister administering the ATSIHP Act following Onus v Minister for the Environment.

The parties' submissions on the adjournment application

32 In support of their application for an adjournment, the applicants relied upon an affidavit of Michael Ian Kennedy sworn on 9 February 2021 and a written case. The applicants submitted that the hearing of the Mackenzie appeal should be adjourned pending the outcome of the Thorpe proceeding because if Thorpe succeeds, the Section 2B works may not be allowed to proceed as proposed and the destruction of, or partial destruction of, flora and habitats that may be caused by the decisions of VicRoads and the Planning Minister may be materially avoided.

33 They also submit that the Thorpe proceeding will demonstrate the significance attached to an EES especially in respect of decisions informed by the precautionary principle. This is submitted to be important to the question of whether the Planning Minister's alleged reliance upon the VicRoads EES (described by the applicants as 'flawed') in making the Exemption decision and the Approval and Amendment decision was irrational and invalid given what was known and knowable at that time.

34 They further submit that the Thorpe proceeding 'may' impact on the issues in the application for leave to appeal, particularly the questions of discretion, delay and the precautionary principle. Ultimately, it was submitted that the Thorpe proceeding was likely to give rise to a better understanding of issues of cultural heritage and this would be relevant to an understanding of the deficiencies of the EES presented to the Planning Minister.

35 In opposing the adjournment application, the first respondent noted that the subject decisions are ones that have been made for some time (the 2013 Ministerial assessment now being about eight years' old); the application for leave to appeal had been listed for an expedited hearing at the request of the applicants; the adjournment sought is for an indefinite period and it is unclear precisely what the applicants submit will emerge from the Thorpe proceeding.

36 In particular, the first respondent submitted that it is an insufficient basis for an adjournment to submit that this Court might be 'assisted' by judgment in the Thorpe proceeding and the applicants could not demonstrate that the Thorpe proceeding would render the Mackenzie appeal of no utility.

37 It was also submitted, based upon the affidavit of Ben Andrew Dodgshun sworn on 15 February 2021, that the first respondent would suffer prejudice by the delay caused by an adjournment as the hearing of the Thorpe proceeding may not conclude until May 2021 (having already being adjourned once), judgment would need to be delivered, and any adjournment would most likely include the deferral of the Mackenzie appeal until any appeal in the Thorpe proceeding had been heard and determined. This could defer the resolution of the issues in the Mackenzie appeal for some considerable time and potentially cause further significant delay to the upgrade of the Western Highway and the improvement to the safety of that highway that the duplication is intended to provide. As the Section 2B works have been suspended by reason of the interlocutory injunction granted by Forbes J, the first respondent ultimately accepted that the adjournment itself would not change the status quo.

38 The second respondent adopted the submissions of the first respondent in opposition to the adjournment and further submitted that there is an important public interest in achieving finality in a proceeding challenging the validity of a decision of a minister of government. He submitted that the position of the applicants with respect to the implications of the Thorpe proceeding for the Mackenzie appeal is at best opaque and uncertain; and it is noteworthy that there has been no undertaking proffered by the applicants that they would abandon the Mackenzie appeal in the event that Thorpe is successful before Forbes J.

39 It is desirable that there be no further delay in the hearing and determination of the issues arising in the Mackenzie appeal. A challenge to the validity of the 2013 Ministerial assessment is a significant matter which ought be resolved as soon as possible. Furthermore, the extent to which the Exemption decision and the Approval and Amendment decision are tainted, if at all, by any invalidity attached to the 2013 Ministerial assessment is a serious matter that ought be resolved promptly, as should the other issues arising in the Mackenzie appeal.

40 The applicants were unable to identify precisely how any determination of the Thorpe proceeding would impact upon the Mackenzie appeal. Given the concession made before Forbes J that success on the Thorpe proceeding would not prevent the Section 2B works proceeding at all, but rather likely lead to re-routing and the preparation of a new cultural heritage management plan,[17] the applicants could not submit that the issues in the Mackenzie appeal would not have to be determined at some stage. This means that the issues as to the legality of the Planning Minister's decisions will need to be resolved regardless of the determination in the Thorpe proceeding and the Mackenzie appeal will not be futile.

41 It may be accepted that the VicRoads EES required an assessment of the effects of the Stage 2 project (including the Section 2B works) on 'cultural heritage' as part of the environmental effects of the Stage 2 project[18] and that the Thorpe proceeding will involve a close and careful assessment of the cultural heritage impacted upon by the Section 2B works. However, it is uncertain how the conclusions to be reached in the Thorpe proceeding, including any conclusion as to whether it is necessary for a new cultural management plan to be prepared, could have any impact upon the questions of the validity of decisions made in 2013 and 2017 by the Planning Minister. Those questions will remain live until they are resolved on appeal. While they remain live, they are an impediment to progress on the Section 2B works and the increased safety that the Section 2B works are designed to achieve. The questions raised in the Thorpe proceeding provide a separate and largely independent impediment to progress on the Section 2B works. However, it would be an unfortunate consequence of an adjournment of the Mackenzie appeal if the Thorpe proceeding led to a re-routing of the Section 2B works, but those works could not commence because there remained unresolved questions about the legality of the decisions made by the Planning Minister under the PE Act.

42 We accept that ultimately it is no more than a matter of speculation as to whether a determination of the Thorpe proceeding would have implications for the issues raised in the Mackenzie appeal and that the applicants' submissions could rise no higher than this.

43 This Court in the recent decision of Traffic Technique Pty Ltd v Burgmann ('Traffic Technique'),[19] reflected upon the balancing exercise that must be undertaken when an adjournment is sought, with regard to the principles in Aon Risk Services Australia Ltd v Australia National University ('Aon'),[20] saying:

[T]here is no single universal approach to the question of whether to grant leave in response to an application for adjournment, and ... questions about the fair hearing of the substantive merits of the case must be weighed alongside considerations of procedural justice for the litigants in question, the legal system more generally, and the need to preserve public confidence in that system. ... [Aon] demonstrate[s] that the question of whether to grant leave to amend a defence, or to grant an adjournment, can only be resolved by balancing a range of factors, no one of which is inherently subservient, or deserving of less weight, than any other.

... Clearly the interests of justice will vary depending upon the circumstances of one case to another; where the interests of justice lie cannot be judged by the application of a single universal rule. The thrust of Aon was to expand the range of interests to be taken into account (including the interests of non-parties who are litigants in other cases) in determining where the interests of justice lie and not to replace one almost universal rule with another.[21]

44 Here it is important to consider that the adjournment application has been brought at a time that is very close to the listed date of hearing for the Mackenzie appeal and thus at a time when counsel have already been briefed to appear for the respondents and the Court has marshalled its resources to ensure it could accede to the applicants' earlier request for expedition. The lateness of the adjournment application meant that it was inevitable that a grant of leave to adjourn would involve some waste of court resources and inefficiency in the legal system overall. Modern case management principles, as articulated in Aon, and as reflected in the Civil Procedure Act, support the refusal of leave to adjourn.

45 With respect to the issue of costs, we determined that the applicants ought pay the respondents' costs of the application to adjourn (but not of the mention more broadly), on the standard basis only. We declined to make an order that the costs of the adjournment be costs in the proceeding[22] because the application was a separate matter from the issues to be heard in the Mackenzie appeal and the applicants were unsuccessful. We considered that, in the circumstances, costs should follow the event. Furthermore, the application was made against the background that the applicants had permitted the application for leave to appeal to become abandoned, because of non-compliance with procedural directions, and there was a need for orders to be made for reinstatement. Moreover, the timetabling directions made after the reinstatement for the filing of material in respect of the adjournment application were not met by the applicants, with the result that the respondents had very little time in which to grapple with the applicants' submissions in support of the adjournment. This took place in a context in which, unless the adjournment application was heard and determined expeditiously, the hearing dates for the Mackenzie appeal would be lost by stealth. In making these observations, we make no criticism of counsel for the applicants.

46 We made the self-executing indemnity costs order recorded in [7] of the orders set out above[23] for similar reasons and with the objective of deterring any further breaches of the timetable to ensure the respondents and the Court can properly prepare for the hearing of the Mackenzie appeal. The applicants did not oppose the making of this order. The dates recorded in the orders were arrived at after submissions were made, and consent was given, by both the applicants and respondents.

47 In accordance with the orders we made on 16 February 2021, the Mackenzie appeal ought be heard on 1 and 2 March 2021.

[1] Mackenzie v Head, Transport for Victoria [2020] VSC 328 ('Mackenzie reasons').

[2] The parties and the judge in the Mackenzie proceeding referred to the first respondent as 'VicRoads' and we will use the same terminology. The judge noted that although on 1 January 2020 the Roads Corporation was abolished and its functions transferred to a corporation sole titled 'Head, Transport for Victoria', the proceeding concerned matters that occurred before that date: Mackenzie reasons [1] n 1.

[4] Thorpe v Head, Transport for Victoria [2020] VSC 804 ('Thorpe reasons'). This Court was informed that some surveying work has continued because it is permitted within the scope of the injunction but that construction works and the removal of vegetation has ceased.

[6] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, Traffic Technique Pty Ltd v Burgmann [2020] VSCA 319.

[10] Mackenzie v VicRoads [2016] VSC 698.

[11] This challenge is now expressly made in additional ground 10, having been somewhat implied in the original grounds.

[12] This summary is taken from the Thorpe reasons. There was no appearance on the adjournment application from any of the parties in the Thorpe proceeding except for the one common party, namely VicRoads, but senior counsel informed this Court that he was not counsel briefed in the Thorpe proceeding and he had limited knowledge of that matter.

[16] [2020] FCA 1807.

[17] See [29] above.

[19] [2020] VSCA 319.

[21] [2020] VSCA 319, [57]-[58].

[22] See the Supreme Court (General Civil Procedure) Rules, r 63.20 which provides: 'Where an interlocutory or other application is made in a proceeding and - (a) no order is made on the application; or (b) the order made is silent as to costs - the costs are the parties' costs in the proceeding, unless the Court otherwise orders'.