RE MINISTER FOR THE ENVIRONMENT; EX PARTE ELWOOD & ANOR [2007] WASCA 137 (29 June 2007) - WASCA 2007 case summary — Zoe

[85]

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v Randwick Municipal Council [(1976) [1976] HCA 58; 136 CLR 106 at 109]; Salemi [No 2] [Salemi v MacKellar [No 2] [1977] HCA 26; (1977) 137 CLR 396 at 419]; Ratu [R v MacKellar; Ex parte Ratu [1977] HCA 35; (1977) 137 CLR 461 at 476]; Heatley v Tasmanian Racing and Gaming Commission [(1977) [1977] HCA 39; 137 CLR 487 at 498-499]; FAI Insurances Ltd v Winneke [(1982) [1982] HCA 26; 151 CLR 342 at 360, 376-377]; Annamunthodo v Oilfields Workers' Trade Union [[1961] AC 945]. ...

The reference to 'legitimate expectation' makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi [No 2] [at 404] Barwick CJ expressed the view that the expression 'legitimate expectation' adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of 'legitimate expectation' extends to expectations which go beyond enforceable legal rights provided that they are reasonably based: Heatley [at 508-509]; FAI [at 348, 351-352, 369, 412]; Attorney-General (Hong Kong) v Ng Yuen Shiu [[1983] 2 AC 629 at 636]. The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. ... Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI ... or from the existence of a regular practice which the person affected can reasonably expect to continue: Council of Civil Service Unions v Minister for Civil Service [[1985] 1 AC 374 at 401]. The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case."

[87]

"The notion of a 'legitimate expectation' which gives rise to a prima facie entitlement to procedural fairness or natural justice in the exercise of statutory power or authority is well established in the law of this country (see, eg, FAI Insurances Ltd v Winneke [(1982) [1982] HCA 26; 151 CLR 342, at 348, 351, 361 - 362, 369, 376, 390 - 391, but cf at 412]). The notion is not, however, without its difficulty. For one thing, the word 'legitimate' is prone to carry with it a suggestion of entitlement to the substance of the expectation whereas the true entitlement is to the observance of procedural fairness before the substance of the expectation is denied (see, eg, Salemi v MacKellar [No 2] [(1977) [1977] HCA 26; 137 CLR 396, at 452]; Kioa v West [(1985) [1985] HCA 81; 159 CLR 550, at 563]). In that regard, there is much to be said for preferring the phrase 'reasonable expectation' which has often been used in judgments in this Court. For another thing, the vagueness of the phrase 'legitimate expectation', which enables it to be used as a convenient label for a broad category of circumstances which will give rise to a prima facie obligation to accord procedural fairness, may convey an impression of comprehensiveness with the result that the absence of an identified legitimate expectation is wrongly seen as a legal mandate for disregarding procedural fairness in any case where no legal right in the strict sense is involved. Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to 'the particular statutory framework' (see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [(1963) [1963] HCA 41; 113 CLR 475, at 504]), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just."

Legislation Cited (3)

Planning and Assessment Act 1979

Protection Act 1986

Protection Amendment Act 2003

Cases Cited (39)

RE MINISTER FOR THE ENVIRONMENT; EX PARTE ELWOOD & ANOR [2007] WASCA 137 (29 June 2007)

7 The term "proposal" is relevantly defined in s 3 of the Act to mean "a project, plan, programme, policy, operation, undertaking or development or change in land use, or amendment of any of the foregoing". However, there is nothing significant in the use of that term, which on its natural and ordinary meaning suggests futurity, because under the Act a proposal remains a proposal after the publication of a Ministerial statement under s 45(5) and during the course of its implementation: Greendene Development Corporation Pty Ltd v Environmental Protection Authority [2003] WASCA 242; (2003) 28 WAR 107 at [31] - [43].

19 A relevant consideration is one which the decision-maker is expressly or impliedly obliged to take into account in the course of reaching the decision under review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39. The relevant legislation may specify the particular matters that are to be considered or the obligation may arise by implication from the subject matter, scope and purpose of the legislation.

"The 'jurisdictional fact', upon the presence of which jurisdiction is conditioned, need not be a 'fact' in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase 'jurisdictional fact' is an awkward one in such circumstances it will, for convenience, be retained in what follows. In Bankstown Municipal Council v Fripp [(1919) [1919] HCA 41; 26 CLR 385 at 403], Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker."

112 In Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, Gibbs J observed, at 118, that it is not uncommon for statutes to provide that a decision-maker shall or may take certain action if satisfied of the existence of specified matters. After noting that whether a decision under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the decision-maker is required to be satisfied, his Honour said, at 118 - 119:

113 In my opinion, s 45C(2) imposes on the Minister an obligation to evaluate whether the relevant change or changes "might" have a significant detrimental effect on the environment in addition to, or different from, the effect of the original proposal. The word "might" is the past tense of "may" and, in this context, connotes that there is a reasonable possibility that the relevant change or changes will have the requisite effect. If the Minister "considers" (that is, in this context, forms the opinion) that there is a reasonable possibility that the relevant change or changes will have a significant detrimental effect on the environment etc, the power of approval under s 45C(1) is not exercisable. If, however, the Minister forms the opinion that there is no reasonable possibility that the relevant change or changes will have that effect, the power may be exercised. It is not a condition precedent to the power under s 45C(1) becoming exercisable that, as a matter of objective fact, there is no reasonable possibility that the relevant change or changes will have a significant detrimental effect on the environment etc. Rather, it is the existence of the Minister's opinion on that issue which enlivens the power. See Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297 at 302 - 304 and compare Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78 at 90 - 91.

119 It is unnecessary, in these proceedings, to determine whether the Minister has a residual discretion, as distinct from a power which must be exercised, under s 45C(1), in the event that the Minister forms the requisite opinion under s 45C(2). See and compare, in a different context, Finance Facilities Pty Ltd v Commissioner of Taxation (Cth) [1971] HCA 12; (1971) 127 CLR 106 at 134 - 135; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 204 - 205 [19]; Leach v The Queen [2007] HCA 3; (2007) 81 ALJR 598 at 608 [38].

127 The applicant relied on the decisions in Mosman Park Town v Esther Investments Pty Ltd (1996) 93 LGERA 38, Ireland v Cessnock City Council [1999] NSWLEC 153; (1999) 103 LGERA 285 and Ireland v Cessnock City Council [1999] NSWLEC 250; (1999) 110 LGERA 311. Each of them is distinguishable.

(1999) 197 CLR 611

(1976) 135 CLR 110

(1996) 93 LGERA 38

(1999) 103 LGERA 285

(1999) 110 LGERA 311

(1977) 137 CLR 461

(1995) 183 CLR 273

(2003) 77 ALJR 1165

(1986) 162 CLR 24

(1971) 127 CLR 106

(1998) 100 LGERA 365

(1950) 81 CLR 87

(2002) 210 CLR 438

(1990) 169 CLR 648

(2005) 148 FCR 446

(2003) 216 CLR 212

(1997) 187 CLR 297

(1999) 46 NSWLR 78

(2000) 203 CLR 194

(2007) 81 ALJR 598

(2004) 221 CLR 30

(2003) 214 CLR 1

(1985) 159 CLR 550

(1977) 137 CLR 396

(1990) 170 CLR 1

(2003) 28 WAR 107

(1996) 90 LGERA 136

(2000) 111 LGERA 181

(1982) 56 ALJR 678

(2000) 205 CLR 337

(2001) 205 CLR 507

RE MINISTER FOR THE ENVIRONMENT; EX PARTE ELWOOD & ANOR [2007] WASCA 137 (29 June 2007)

At a glance

Court

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Catchwords

Source

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Judgment (129 paragraphs)

Legislation Cited (3)

Cases Cited (39)

RE MINISTER FOR THE ENVIRONMENT; EX PARTE ELWOOD & ANOR [2007] WASCA 137 (29 June 2007)