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Waratah Coal Pty Ltd v Nicholls

 

[2013] QSC 68

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68

PARTIES:

WARATAH COAL PTY LTD ACN 114 165 669
(applicant)
v
TIMOTHY JAMES NICHOLLS, TREASURER AND MINISTER FOR TRADE
(first respondent)
and
NORTH QUEENSLAND BULK PORTS CORPORATION LIMITED
(second respondent)

FILE NO:

BS 10350 of 2012

DIVISION:

Trial Division

PROCEEDING:

Statutory Order of Review

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

22 March 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

6 March 2013

Further written submissions received on 18 March 2013

JUDGE:

Applegarth J

ORDER:

On the respondents’ application to dismiss:

  1. application adjourned to a date to be fixed;
  2. costs reserved.

On the applicant’s application filed 21 February 2013:

  1. each of the respondents disclose any document within the period 18 May 2012 to 12 July 2012 which constitutes or evidences a direction to the second respondent by its Shareholding Ministers (or any one of them) to terminate the process for identification of Preferred Respondents and negotiation with Preferred Respondents in respect of the proposed development of terminals 4 to 9 at the Port of Abbot Point;
  2. otherwise application adjourned to a date to be fixed;
  3. costs reserved.

CATCHWORDS:

ADMINISTRATIVE LAW  – JUDICIAL REVIEW  – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION  – DECLARATIONS  – where applicant (“Waratah”) alleges two State Ministers gave a direction to the second respondent (“NQBPC”) to terminate process for proposed development of port terminals and second respondent implemented that direction –  where applicant alleges Ministers’ direction and second respondent’s implementation of it are invalid  – where respondents deny alleged direction was given – where respondents argue proceeding is misconceived and lacks utility – whether alleged direction was given – whether proceeding should be dismissed

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT  – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES  – DECISIONS UNDER AN ENACTMENT – DECISIONS UNDER INSTRUMENTS  – where respondents allege decision by NQBPC to terminate process not made under an enactment and excluded by s 18A of the Judicial Review Act 1991 (Qld) (“JRA”)  –  whether decision to terminate process is amenable to review under the JRA

PROCEDURE  – discovery and interrogatories  – DISCOVERY AND INSPECTION OF DOCUMENTS  – where applicant requests disclosure in judicial review proceeding – where respondents oppose request as impermissibly wide and fishing – whether order for disclosure should be made

Civil Proceedings Act 2011 (Qld), s 10

Government Owned Corporations Act 1993 (Qld), s 82, s 88, s 89(2), s 114, s 115, s 117, s 122(1)(a)

Judicial Review Act 1991 (Qld), s 18A, s 26, s 30(1)(b),  s 48, schedule 6

Transport Infrastructure Act 1994 (Qld) s 486

Uniform Civil Procedure Rules 1999 (Qld), r 16(e), r 209(1)(c), r 211(1)(c)

Allianz Australia Insurance Ltd v Crazzi (2006) 68 NSWLR 266; [2006] NSWSC 1090, cited

BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd (No2) [2013] QSC 67, cited

Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183, cited

Commcare v A’Hearn (1993) 45 FCR 441; [1993] FCA 498, cited

Hamden v Secretary, Department of Human Services [2013] FCA 3, cited

Hoffmann v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369, cited

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176, cited

Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1; [2003] FCAFC 288, cited

JJ Richards & Sons Pty Ltd v Bowen Shire Council [2008] 2 Qd R 342; [2008] QCA 16, cited

Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663, cited

R v Commonwealth Court of Conciliation Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33, cited

Re Refugee Tribunal;  Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, cited

Riddell v Secretary, Department of Social Security (1993) 42 FCR 443; [1993] FCA 261, cited

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26, cited

Truenergy Australia Pty Ltd v Minister for Industrial Relations (2005) 93 SASR 393; [2005] SASC 490, cited

Von Stalheim v Anti Discrimination Tribunal and KPMG; Von Stalheim v Anti Discrimination Tribunal, H M Wood and Statewide Independent Wholesalers [2009] TASSC 6, cited

Westpac Banking Corporation v Hughes [2012] 1 Qd R 581; [2011] QCA 42, cited

Westwood v Human Rights and Equal Opportunity Commission [2004] FCA 153, cited

COUNSEL:

S Doyle SC, with S A McLeod and A C Stumer, for the applicant

M D Hinson SC, with J M Horton, for the respondents

SOLICITORS:

Hopgood Ganim Lawyers for the applicant

Clayton Utz for the respondents

  1. The applicant (“Waratah”) alleges two State Ministers gave a direction to the second respondent (“NQBPC”) to terminate a process in respect of the proposed development of certain terminals at the Port of Abbot Point, and that, acting pursuant to that direction, NQBPC terminated that process. The Ministers are the “Shareholding Ministers” of NQBPC. The Government Owned Corporations Act 1993 (Qld) (“GOCA’’) regulates the directions by or on behalf of the State Government to which a government owned corporation (“GOC”) and its board are subject.  Waratah alleges that the Shareholding Ministers’ direction and NQBPC’s implementation of it are invalid.
  1. The respondents deny that the alleged direction was given, and say that because no such direction was given the proceeding is misconceived, lacks merit and should be dismissed or set aside. The respondents also submit that:
  1. an extension of time to allow “the NQBPC decision” to be challenged under the Judicial Review Act 1991 (Qld) (“JRA”) should be refused, principally due to the application’s lack of merit;
  1. NQBPC’s commercial decision in respect of the previously-proposed development of  terminals 4 to 9 (“T4 to T9”) at the port is not amenable to review under the JRA; and
  1. the relief sought by Waratah lacks utility, and for this additional reason, the proceeding should be dismissed or struck out.

For essentially the same reasons the respondents submit that leave to file a proposed amended application for a statutory order of review should be refused.  The proposed amended application joins the second Shareholding Minister as a third respondent, adds additional grounds for judicial review and seeks declarations of invalidity, injunctive and other relief pursuant to Part 5 of the JRA.  The respondents argue that this alternative case lacks merit because the alleged direction was not made.  The respondents also argue declaratory relief should be refused because it is pointless and lacks utility. 

  1. In essence, the respondents submit the relief Waratah seeks is pointless, lacks utility and should be declined in circumstances where:
  1. Waratah did not engage in the previous process by complying with conditions which applied to it and other third parties seeking to become a Preferred Respondent;
  1. that process has been terminated due to the State’s withdrawal of support for that project, and it would be pointless for NQBPC to re-start that process, particularly because State land is required for the project to be undertaken;
  1. a new process has been established seeking expressions of interest in respect of the expansion of the port;
  1. it would be unfair to permit a company which did not satisfy the conditions for becoming a Preferred Respondent to derail the new process which has been established in relation to the expansion of the port; and
  1. Waratah and others are participating in that new process.

In those circumstances, and for other reasons, the respondents submit that a declaration that the supposed direction was invalid would lack any utility.  The T4 – T9 proposal is, as it were, dead in the water.  The State, NQBPC and interested parties, including Waratah, are participating in a new process, and a declaration that the supposed direction was invalid would not inform the future conduct of the parties. 

  1. Waratah responds to the application to bring the proceeding to an end by submitting that:
  1. the question of whether the Ministers gave the alleged direction is not appropriate for determination at this stage, and whilst Waratah says the alleged direction was given in a letter from the Shareholding Ministers, disclosure that it seeks might provide additional context on the issue of whether the letter amounts to a direction;
  1. because an explanation has been given for its delay in filing the application, and the application cannot be said to be without merit, an extension of time should be granted under the JRA; and
  1. restrictions on relief under the JRA in respect of the “commercial activities” of NQBPC are not engaged or are outflanked by relief sought outside the JRA.

It also submits that the relief sought by it is not futile, despite the new process which has been adopted for the proposed AbbotPointPort expansion.  The evidence is said to not establish that events have moved on such that it is not feasible to revert to the earlier process or that the Government will not do so if the Court determines that the process for termination of the previous process was flawed.  There is said to be utility in making declarations in relation to the alleged administrative decisions, even if those decisions are not capable, in a practical sense, of being reversed.  Waratah is said to have an interest in clarifying the extent to which the Shareholding Ministers may be permitted to give informal directions to NQBPC, and a decision in relation to the previous process might inform the conduct of NQBPC and the Shareholding Ministers in relation to the new process. 

  1. The substantial issues may be summarised as follows:

(a)Should the proceeding under the JRA be dismissed because it proceeds on the incorrect factual premise that the alleged direction was made, and also seeks to subject to review under the JRA decisions or conduct which are not amenable to it?

(b)Should the additional relief sought pursuant to s 10 of the Civil Proceedings Act 2011 (Qld) or alternatively the Court’s inherent jurisdiction to grant declaratory relief be refused because of the same lack of merit?

(c)Does the application (and the proposed amended application) seek declaratory relief on a hypothetical point and relief that lacks utility?

Background

  1. Waratah is a coal development entity within the Mineralogy Group. Its China First Coal Project requires port facilities in North Queensland
  1. NQBPC is a GOC. Its voting shares are held equally by two Shareholding Ministers: the Treasurer and Minister for Trade (the first respondent) and a Portfolio Minister, being the Minister for Transport and Main Roads (the proposed third respondent). The Shareholding Ministers must act jointly.[1]
  1. NQBPC has a board. Its directors are appointed on the basis of their ability to make a contribution to the corporation’s commercial performance.[2]  The role of a GOC’s board includes:

(a)responsibility for the corporation’s commercial policy and management;

(b)ensuring that, as far as possible, the corporation achieves, and acts in accordance with its statement of corporate intent and carries out the objectives outlined in its statement of corporate intent;

(c)accounting to the corporation’s shareholders for its performance as required by the GOCA and other laws applying to the corporation; and

(d)ensuring that the corporation otherwise performs its functions in a proper, effective and efficient way.[3]

  1. Except as provided by legislation, a GOC and its board are not subject to direction by or on behalf of the Government.[4]  Section 114 of the GOCA permits the Shareholding Ministers to notify the GOC’s board in writing of a public sector policy that is to apply to the GOC.  Section 115 empowers the Shareholding Ministers of a GOC to give its board a written direction in relation to the GOC and its subsidiaries if the Shareholding Ministers are satisfied that, because of exceptional circumstances, it is necessary to give the direction in the public interest.  Further reference will be made to these sections, including the requirement in s 115 for the Shareholding Ministers to consult with the board before giving such a direction, and for a copy of the direction to be published in the gazette within 21 days after it is given.
  1. Part 11 of the GOCA deals with reports and other accountability matters.  In addition to requirements for quarterly and annual reports, the GOCA requires a GOC’s board to keep the Shareholding Ministers reasonably informed of the operations, financial performance and financial position of the GOC and its subsidiaries.[5]
  1. The Constitution of NQBPC states its objects. Its objects include establishing, managing and operating effective and efficient port facilities and port services. It has certain statutory functions including making port rules for the safety and efficiency of the port. It has various operational functions. Its commercial functions include the construction, management and maintenance of port infrastructure, including commercial agreements to fund investment.
  1. NQBPC must plan the future development of the Port at Abbot Point and its surrounding environment. In early 2011 it previewed the possible development of additional coal terminals within the Abbot Point State Development Area. It wished to assess preliminary demand for additional terminals. In May 2011 it published a formal Request for Expression of Interest. Responses to that request were to be evaluated with a view to certain entities being nominated as Preferred Respondents. The next stage of the intended process was for Preferred Respondents to be provided with additional information and drafts of NQBPC’s proposed agreements, with those Preferred Respondents who were willing to proceed with the project on those terms being awarded the right to develop a site and/or capacity at a multi-user terminal.
  1. On 1 August 2011 Waratah submitted an Expression of Interest to NQBPC seeking designation as a Preferred Respondent for one tranche of terminal capacity at Abbot Point.  On 1 December 2011 NQBPC wrote to Waratah and advised that it had been nominated as a Preferred Respondent in the T8 – T9 project.
  1. Between December 2011 and April 2012 NQBPC sought, without success, to have Waratah execute both a Project Confidentiality Deed and an Appointment of Preferred Respondent Agreement (“APRA”). Execution by Waratah of these documents was a condition for its progression as a Preferred Respondent in the T4 – T9 process.
  1. By letter dated 4 January 2012, Waratah advised NQBPC’s Project Director that the preliminary views of its Chairman was that the matter should be discussed with the then Premier of Queensland as, among other things, the terms of the Confidentiality Agreement and the APRA were “restrictive, unconstitutional and not in the best interests of government or transparency.” It advised that the matter required the consideration of the board of directors of Waratah. On 12 January 2012 NQBPC noted in an e-mail to Waratah that it had targeted 31 January 2012 as a deadline for execution of documents with each Preferred Respondent, so as to safeguard the confidential information of both NQBPC and Preferred Respondents. NQBPC reserved its right to exclude a Preferred Respondent from further participation if the Preferred Respondent was unwilling or unable to progress the project in accordance with the required timetable.
  1. On 31 January 2012 NQBPC noted in another e-mail that Waratah required the proposed agreements to be considered by its board in mid-February and that, as previously advised, this timeframe was inconsistent with the previously advised timetable of 31 January 2012. Nevertheless, NQBPC granted Waratah an extension to 28 February 2012 to accept its offer to deal with Waratah as a Preferred Respondent, execute the Confidentiality Deed, execute the APRA and make a required payment.
  1. Waratah did not do these things.
  1. On 29 February 2012 NQBPC wrote to Waratah and recorded its disappointment that execution of the agreements and confirmation of Waratah’s Preferred Respondent status had not occurred. Having regard to the pending State election, NQBPC proposed to delay until 30 April 2012 formally reviewing the participation of any T4 – T9 Preferred Respondent who had not signed the APRA and Confidentiality Deed. NQBPC reserved its rights to exclude any respondent from the T4 – T9 process if execution of APRA’s and Confidentiality Deeds did not occur by 30 April 2012.
  1. On 30 March 2012 Waratah wrote to NQBPC, advising that its Executive Chairman was travelling at the time and was unable to meet, and suggested a meeting in the first half of May 2012. On 13 April 2012 NQBPC responded, expressing disappointment at the terms of the letter and noting that at no time had Waratah shown any enthusiasm for progressing any negotiations of the initial agreements. Whilst appreciating the busy timetable of Waratah’s Executive Chairman, NQBPC stated that this could not impact on its dealings with Waratah to which Waratah had given no priority. Waratah’s position was to be reviewed at the end of April, and NQBPC said that, in the circumstances, there was no assurance that Waratah would continue to have status as a Preferred Respondent in the absence of satisfactory progress and negotiations. Waratah’s request to further delay a meeting until the first half of May 2012 was declined.
  1. In summary, Waratah declined to comply with conditions that applied to parties which wished to proceed with the project, namely sign an APRA and a Confidentiality Deed within the timeframe required by NQBPC or within the extended period given to it. It never signed these documents.
  1. In the meantime, other parties with an interest in the project had complied with these requirements. A note of a meeting that occurred between the new Treasurer and NQBPC recorded the Treasurer’s wish that NQBPC respond on commercial terms to all potential developers, and that there was to be no special treatment for Waratah.
  1. The land which was intended to be the subject of the new terminals is located within the Abbot Point State Development Area and is subject to its planning scheme. The Coordinator-General is responsible for deciding about use of the land. NQBPC hoped to acquire the land from the State, but as early as its May 2011 Request for Expression of Interest notified that it and the State would have no liability to respondents in the event that the project did not proceed as a result of NQBPC being unable, for any reason, to acquire the land, certain reclaimed land or required offshore tenures or failing to obtain any relevant approvals relating to the proposed projects.

The State Government’s withdrawal of support for the proposed development

  1. On 18 May 2012 the Deputy Premier and Minister for State Development, Infrastructure and Planning wrote to the Chief Executive Officer (“CEO”) of NQBPC in the following terms:

“I write to clarify the Government’s position on the Multi-Cargo Facility (MCF) at Abbot Point and how we see the future planning of infrastructure progressing.

 

Firstly, I would like to acknowledge the considerable work done to date on the MCF and the associated T4 – T9 infrastructure.  I also appreciate that this port is a very important strategic asset for the State and its successful future development will play a key role in Queensland’s future economic development.

 

However, I believe the fundamental problem with the current MCF proposal is the magnitude of what is proposed.  The significant scale, complexity and potential impacts of the proposed infrastructure are extensive and it would be many years before the whole of the planned capacity would be realistically warranted.

 

The associated anticipated environmental impacts of such a large proposal have led to major delays in gaining environmental approvals and there is no guarantee at this point, that the project will be approved by the existing processes.

 

In addition, the management of the proposal to date and the various commercial commitments required have also created issues and risks for potential proponents.

 

These issues, risks and uncertainties have already led to two major proponents withdrawing their interest from the MCF proposal.  This undoubtedly places an even greater burden on those remaining and makes the likelihood of the MCF proposal proceeding to successful completion even more unlikely.

 

For all these reasons I do not believe the Government can provide any further support for the current proposal for the development of T4 – T9 and the Multi Cargo Facility at Abbott [sic] Point.

 

I would however suggest that the focus should be on ensuring that the T0, T2 and T3 proposals are developed and become realities and then focus on incremental expansion of the port capacity to meet any further future demand.

 

I would ask that you work closely with my department and the Coordinator-General to make these smaller scale developments at Abbot Point a reality in the shortest possible timeframe.

 

As the proponent for the Dudgeon Point coal terminal I encourage you also to progress that project through the EIS stage.

 

Can you also clarify as soon as possible all current commitments and financial risks associated with this and work with Queensland Treasury to mitigate these.”

  1. On 21 May 2012 Waratah received a letter from the Director-General, Department of State Development, Infrastructure and Planning which likewise advised it about the Government’s position in relation to the proposed multi-cargo facility (“MCF”) and T4 – T9 at the port. It advised that the Government believed that “there can be a more practical and efficient approach to expansion of coal infrastructure at the port and views there to be fundamental issues of scale and staging with the current proposals.” It reiterated a number of the points made in the letter to NQBPC about an alternative which would provide a better growth solution.

NQBPC’s response to the Government’s position in relation to the Abbot Point MCF and T4 – T9 process.

  1. On 22 May 2012 the NQBPC board met and was briefed by its CEO in relation to the advice received from the Minister for State Development, Infrastructure and Planning in relation to the proposed MCF and T4 – T9 process. The CEO was instructed to respond to the letter dated 18 May 2012 in certain terms. The CEO also was instructed to liaise with relevant departmental officers concerning:

(a)Shareholding Minister arrangements for the corporation;

(b)the intention of the Government concerning ongoing negotiations with Preferred Respondents;  and

(c)such other matters as the Chairman and the CEO deemed appropriate.

The CEO was authorised, subject to ascertaining the intention of the Government concerning ongoing negotiations with Preferred Respondents, to extend the current exclusivity arrangements under the APRAs to no later than 30 June 2012.  The CEO also was to “progress such actions as are required to place the Corporation in a position to respond to the requirements of Shareholding Ministers, when advised, in a timely fashion.” 

  1. At its 26 June 2012 meeting the board of NQBPC received a report about the financial implications of the Government’s announcement and about the Abbot Point Commercial Framework, noting that a letter was to be sent to Shareholding Ministers advising that the Exclusivity Period under the APRAs was not proposed to be extended past 30 June 2012 and requesting advice from Shareholding Ministers that it was appropriate to terminate the APRAs and the T4 – T9 process.  The minutes of the board meeting record that subject to the advice from Shareholding Ministers, NQBPC would:
  1. terminate the APRAs with Vale, Anglo and MacMines;  and
  1.   terminate the T4 – T9 process.
  1. On 26 June 2012 the Chairman of NQBPC wrote to the Shareholding Ministers. This letter assumes importance in determining the context in which the Shareholding Ministers’ letter, which Waratah alleges constitutes a direction, came to be written. In the circumstances, I shall set out NQBPC’s letter of 26 June 2012 in full, omitting formal parts:

Port of Abbot Point:  Appointment of Preferred Respondent Agreement (APRA) – Terminals 4-9

 

...

 

On 18 May 2012 the Deputy Premier and Minister for State Development, Infrastructure and Planning (DSDIP) wrote to North Queensland Bulk Ports Corporation (NQBP) indicating that the Government cannot provide further support for the development of T4 – T9 and Multi Cargo facility at the Port of Abbot Point.

 

In the period since receiving this letter NQBP has been working closely with DSDIP and with the Coordinator-General with respect of (sic) options for incremental expansion of port capacity to meet any further future demand.  NQBP has also engaged in discussion with Queensland Treasury (QT) with respect to ways in which Government and NQBP could promote a development path that seeks private sector parties to fund this infrastructure, minimising the balance sheet impact and risk to the State.

 

At the time of receipt of the above letter, NQBP had in place APRAs with three (3) Preferred Respondents, namely, Anglo American, Vale and MacMines.  These agreements contain an ‘Exclusivity Period’ date by which time it was envisaged that NQBP and the respective Preferred Respondents would have entered into a Framework Agreement.  This exclusivity date was extended out until 30 June 2012 pending further clarity on a way forward for the development at Abbot Point coming out of discussions with DSDIP, Coordinator-General and QT.  The extension to 30 June 2012 was undertaken following consultation with the Director-General of DSDIP.

 

Each of these Preferred Respondents, who have executed the APRAs have, in recent weeks, enquired to NQBP as to the future of the APRA, and their status with respect to future development at Abbot Point.

 

NQBP; following discussions with officers of DSDIP believes the best path forward is that the APRAs be terminated to formally conclude those negotiations.  However, in doing so the State and NQBP should take into account that the APRA proponents have participated in a lengthy process to date.

 

Accordingly it is important that NQBP consults with APRA proponents about the path forward prior to the 30 June 2012 expiry.  Subject to advice from Shareholding Ministers to the contrary NQBP intends to advise APRA proponents that:

 

  • NQBP does not intend to offer proponents an extension to the APRA and the Exclusivity Period past 30 June 2012 (NB any extension would require agreement to do so between the proponents and NQBP);  and

 

  • NQBP is awaiting advice from Government about the formal termination of the APRAs.

 

NQBP looks forward to receiving your advice that it is appropriate to terminate the APRAs after 30 June 2012.”

  1. As can be seen from the letter’s terms and its concluding sentence, its focus was NQBPC’s dealing with the three entities which had signed APRAs which contained an exclusivity period ending on 30 June 2012. Those entities had inquired of NQBPC about the future of the APRA, and their status with respect to future development at Abbot Point. The letter conveyed to the Shareholding Ministers that NQBPC intended to advise those proponents that it did not intend to offer them an extension of the APRA. This was subject to advice from the Shareholding Ministers to the contrary and NQBPC awaited the Ministers’ advice that it was appropriate to terminate the APRAs after 30 June 2012. In short, it sought advice from the Ministers that they did not object to NQBPC’s intended course of action with respect to the APRAs.
  1. The writing of such a letter was consistent with the board’s statutory duty to keep the Shareholding Ministers reasonably informed of the operations of NQBPC. In addition, the board was at liberty to seek information and advice from the Shareholding Ministers. Nothing precludes such a board from seeking the advice of the Shareholding Ministers as to whether they have any position with respect to a proposed course of action by the board. Shareholding Ministers should be informed of significant developments as part of the board’s statutory duty to report and its general obligations to keep the corporation’s shareholders informed of such developments. In addition, providing information about the board’s intended course of action, and the opportunity for the Shareholding Ministers to advise their position, if any, in relation to a matter of significance to the operation and financial affairs of the corporation, provides the Shareholding Ministers with the opportunity to advise whether they support, oppose or have no view about the intended course of action and, subject to the requirements of s 115, to give the board a direction to act differently if they oppose the intended course of action.

The Shareholding Ministers’ response

  1. Waratah submits that the letter from the Shareholding Ministers which responded to the letter of 26 June 2012 amounted to a direction “to terminate the process for identification of Preferred Respondents and negotiation with Preferred Respondents” in respect of the proposed development of terminals 4 – 9. This alleged direction is described in Waratah’s application for judicial review as “the Shareholding Minister’s Decision.” In the circumstances, it is appropriate to set out the letter in full, omitting formal parts. Waratah’s submissions refer to the letter being dated 9 July 2012. The date 9 July 2012 stamped on it appears to be the date it was received. The letter is dated 6 July 2012. I shall refer to it as “the Shareholding Ministers’ letter”:

“Thank you for your letter of 26 June 2012 regarding the proposed approach to concluding negotiations with respondents under the expressions of interest for new coal terminals 4 to 9 at the Port of Abbot Point.

 

We note that existing arrangements with these parties will conclude on 30 June 2012 and that you are currently working with the Department of State Development, Infrastructure and Planning, Department of Transport and Main Roads and Queensland Treasury and Trade about future development paths that provide for a more incremental approach to the construction of additional coal export infrastructure at Abbot Point.

 

An incremental approach is considered better suited to facilitating private sector development of this infrastructure.  In an environment where the Government is fiscally constrained and must prioritise its resources to core Government services, private sector development of this commercial infrastructure is necessary.  North Queensland Bulk Ports Corporation (NQBP), as port authority and land holder, has a significant role to play in facilitating this development.

 

As highlighted in the Deputy Premier’s statements on this issue, the Government, through the Department of State Development, Infrastructure and Planning, intends to consult with potential investors in coal export infrastructure to consider options that facilitate incremental development of the port by the private sector.  This consultation process should involve NQBP and Projects Queensland, such that if it indicates that there is sufficient demand from terminal developers, these discussions can then appropriately transition to the negotiation of specific commercial frameworks for infrastructure development.

 

In the interim, when you are advising respondents of your intention to terminate the T4-9 process, you may wish to also flag the Government’s broader intentions to consult on future development options, and thereby seek to retain their interest in potentially playing a role in the expansion of the port.

 

Thank you for raising these matters with us.”  (emphasis added)

Notice of termination of the T4 – T9 process

  1. On 12 July 2012 NQBPC wrote to Waratah and gave notice that its “process for the identification of preferred respondents, and negotiation with preferred respondents of project documentation, in respect to the development of proposed terminals 4 to 9 at Abbot Point is now terminated.” The letter thanked Waratah for its participation in that process and, as a separate matter, noted that the Queensland Government had publicly stated that it, through the Department of State Development, Infrastructure and Planning, intended to consult with industry and potential investors in coal export infrastructure to consider possible options that facilitate incremental development of the port of Abbot Point by the private sector.

A new process for the expansion of the port

  1. On 7 August 2012 the Director-General of the Department wrote to Waratah, noted that NQBPC had terminated the arrangements previously in place for terminals 4 – 9, and advised that a Dr Golding had been appointed by the Queensland Government to manage an engagement process with stakeholders with a view to making recommendations to the Government about advancing staged terminal developments in line with emerging demand and with  minimal cost and risk to the State.  On 17 August 2012 Waratah wrote to the Deputy Premier and Minister for State Development, Infrastructure and Planning expressing its concerns about the termination of the MCF and T4 – T9 process, and advised that this has damaged Waratah’s ability to supply coal under a long-term coal purchase and supply agreement.  Waratah inquired whether the State intended to compensate Waratah for losses and damage it had suffered.  This included the sum of $550,000 it had expended in respect of the Expression of Interest process for T4 – T9.
  1. In December 2012 the Department of State Development, Infrastructure and Planning publicly released material about the Abbot Point Expansion Project, and invited registrations of interest for participation in the first stage of what was described as “AP-X.” Waratah received a copy of that invitation on 21 December 2012, and in response to it, on 20 February 2013 wrote to the Department. The Department treated Waratah’s letter as a submission under the AP-X Registration of Interest process.

Waratah’s delay in commencing these proceedings and its explanation for the delay

  1. Waratah’s position is that at the time of receipt of NQBPC’s letter of 12 July 2012 terminating the proposed T4 – T9 development, and for some time afterwards, it had no evidence capable of demonstrating that the decision of NQBPC had been at the direction of its Shareholding Ministers. Having read the Director-General’s letter to Waratah dated 21 May 2012 in conjunction with NQBPC’s letter of 12 July 2012, Waratah’s Managing Director, Mr Harris, formed the view that NQBPC’s letter had been written at the direction of the State Government or at least as a consequence of the State Government’s position.  However, he was not in possession of any documents evidencing the involvement of one or both of the Shareholding Ministers in the decision to terminate.
  1. Following the change of State Government in March 2012 there were three decisions which affected Waratah’s ability to obtain funding for and to develop its China First Coal Project in the Galilee Basin.  One of them relates to a rail corridor. This has given rise to separate judicial review proceedings commenced on 15 October 2012.  The second is the decision to terminate the T4 – T9 process.  The third relates to notice received by Waratah on 24 August 2012 from the Coordinator-General advising of a decision not to declare Waratah’s proposed stand alone jetty a significant project.  That is the subject of separate judicial review proceedings commenced on 21 September 2012. 
  1. After receiving advice on 6 June 2012 in relation to the rail corridor matter, Waratah applied to Queensland Treasury and Trade under the Right to Information Act 2009 (Qld) (“RTI”) for access to documents with the subject “Hancock Coal Pty Ltd, GVK and Waratah Coal Pty Ltd time period 26 March to 7 June 2012.”  That RTI request was processed and there was some delay due to the need to consult Waratah in relation to charges and the need to consult with third parties.  A final decision on the request was made on 4 October 2012 and the relevant documents were not released to Waratah until it had paid the required charges.  The documents were released on 16 October 2012.  Amongst the documents obtained by it was an email, the contents of which I have already mentioned.  The email dated 20 April 2012 from a Treasury officer summarises key points that were said to have emerged from a meeting between the Treasurer and NQBPC.  One point was that NQBPC was to respond on commercial terms to all potential developers and that there was to be no special treatment for Waratah.  If such a thing was said by the Treasurer then it is unremarkable, since most citizens might think it entirely appropriate that a GOC should be encouraged to deal on commercial terms with proposed developers and not give special treatment to one proponent over another.
  1. The other document which Mr Harris says he located and assessed as being significant, leading to the filing of the current proceedings on 5 November 2012, is an email dated 8 May 2012 from a Deputy Executive Director within Treasury headed “Abbot Point issues.” It proposed subjects that required consideration at a forthcoming meeting including the following:

“·Should the MCF approval process be cancelled, be put behind T0/2-3 or allowed to run, if cancelled it may not be able to be commenced again.  Will the dropping of the MCF actually speed up T0-3 approvals (as suggested by Hancock but I’m not sure if its a reality)?

 

·Does the decision have an affect (sic) that Hancock will be the only possible rail proponent from the Galilee?

...

·What if the Hancock project doesn’t proceed?  Due to funding, water, approvals...

...

 

·What happens to the Waratah offshore EIS submission?

 

·What are the unintended consequences for non-Hancock Galilee proponents ... Waratah, ... current T4-9 proponents?

 

...”

  1. Waratah submits that upon receiving those two documents, it had in its possession evidence from which it could be inferred that the Treasurer had been involved in the decision to terminate the Preferred Respondent process. I am not persuaded that this is so. The first document says nothing about termination of any process. The second does, but it is unremarkable that Treasury officials should be involved in discussions about Abbot Point, being a significant port, the proper development of which has implications for the State’s economy and the State’s public finances.
  1. Waratah has given an explanation for its delay in commencing these proceedings being its lack of evidence that a direction was given by a Shareholding Minister. The explanation is not particularly compelling in circumstances in which the two documents which it points to provide no evidence of such a direction. It has been said that proceedings commenced outside the limitation period provided for in the JRA ought not to be entertained unless, among other things, the applicant shows an acceptable explanation for the delay.[6]  The absence of an explanation for a delay must at least be a persuasive factor against granting an extension.[7]  Other authorities indicate that there is no rule that an explanation for delay is “imperative” or an essential pre-condition of the grant of an extension of time.[8]
  1. The receipt of documents obtained pursuant to its ROI request provides an explanation for Waratah’s delay. It says that until it received the two documents in October 2012 it had no evidence that a Shareholding Minister had been involved in the decision by NQBPC to terminate the process. It says that the documents it received permit the inference to be drawn that the Treasurer had been involved in the decision to terminate the Preferred Respondent process. That inference is far from compelling. But assuming, for the purposes of argument, that the Treasurer, and not simply Treasury officials, was aware that the process might be terminated if and when the Government announced that it could not provide any further support for the MCF and T4 – T9 process, such an awareness of the consequences of such an announcement falls short of evidence that the Treasurer, let alone the other Shareholding Minister, had directed or was intending to direct NQBPC to terminate the process. The Treasurer might have anticipated that such a process would be terminated by NQBPC as a consequence of the Deputy Premier and Minister for State Development, Infrastructure and Planning announcing that the State Government would not provide any further support for the proposal. However, any anticipation of such a consequence would remove the need to give a direction. Lack of Government support for the proposal to develop T4 – T9 meant that essential land owned by the State would not be available for the development, and that the Government would not provide necessary financial support for a development of such a magnitude, with its environmental impacts. A board faced with those practical and commercial realities, acting in accordance with its obligations, would be obliged to terminate the process for the development of T4 – T9. No direction from a Shareholding Minister would be necessary.
  1. Although I regard Waratah’s explanation for the delay in commencing proceedings under the JRA as unconvincing, for reasons that I will later give, there are more substantial reasons for refusing an extension of time to commence proceedings under the JRA against NQBPC.

The proceeding commenced on 5 November 2012

  1. The application for a statutory order of review filed on 5 November 2012 sought review of two alleged decisions. The first, described as “the Shareholding Minister’s Decision” was said to have been made on or after 21 May 2012 by the first respondent, who was alleged to have issued an instruction to NQBPC pursuant to s 114 or alternatively s 115 of the GOCA requiring NQBPC to terminate the process for identification of Preferred Respondents and negotiation with Preferred Respondents in respect to the proposed development of terminals 4 – 9 at the Port of Abbot Point.  The second decision sought to be reviewed, based on NQBPC’s letter to Waratah dated 12 July 2012, was NQBPC’s decision to terminate the Preferred Respondent process in respect to the proposed development of terminals 4 – 9.  This decision was alleged to have been taken, acting pursuant to the instruction allegedly given by the first respondent.
  1. The application contains a number of grounds upon which judicial review is sought. The Shareholding Minister’s Decision is said to be invalid because it was not published in the gazette within the 21 days required by s 114(4) or s 115(4) of the Act. The NQBPC decision is said to be invalid because it purported to implement the Shareholding Minister’s Decision in those circumstances. Also, because it purported to implement the Shareholding Minister’s Decision, Waratah contends that the NQBPC decision should be set aside if the Shareholding Minister’s Decision is set aside.
  1. Waratah claims various orders under the JRA including an extension of time in respect to the application to review the NQBPC decision and orders quashing or setting aside each decision.  It seeks an order pursuant to s 30(1)(b) of the JRA referring the decision in relation to the termination of the process back to the first respondent and the second respondent to be decided in accordance with the law.  In the alternative to orders pursuant to the JRA, it seeks pursuant to s 10 of the Civil Proceedings Act 2011 (Qld) or alternatively the Court’s inherent jurisdiction, a declaration that the Shareholding Minister’s Decision and the NQBPC decision were invalid, an order setting them aside and an order referring the decisions back to the first respondent and the second respondent to be decided in accordance with the law.
  1. On 21 February 2013 Waratah filed an interlocutory application seeking leave to file an amended application for a statutory order of review. The proposed amended application seeks the joinder of the other Shareholding Minister as a third respondent. The proposed amended application identifies the instruction as one having been given on or about 9 July 2012 by the Shareholding Ministers. It seeks to add additional grounds for judicial review and further relief pursuant to Part 5 of the JRA

The State Government’s proposed development

  1. As mentioned, the proposed development of the MCF and the T4 – T9 terminals was to be on land which is presently under the control of the State, being land that had previously been declared a State Development Area. The CEO of NQBPC states in his evidence that the T4 – T9 development process was conceived and proceeded on the basis that the State would deliver to NQBPC, at an appropriate time, land access and land tenure arrangements to enable NQBPC to develop the T4 – T9 terminals.  His affidavit continues:

“5.Given that the State, acting through the Department of State Development, Infrastructure and Planning has now sought formal Registrations of Interests for participation in the first stage of the new Proposed Abbot Point Expansion Project (now known as AP-X), on a practical basis the development of the T4 – T9 Terminals cannot now proceed unless the State is prepared to change its current publicly announced plans and provide to the Second Respondent appropriate land access and land tenure to allow the construction and development of the T4 – T9.  Again, this is the case because the Second Respondent, without the support of the State, cannot itself develop the T4 – T9 Terminals (as had been proposed as part of the T4 – T9 Development Process) as it does not own or control any of the required land.”

This evidence is relied upon by the respondents in support of its contention that the relief sought is futile.  In response, Waratah submits that the evidence does not establish that events have moved on such that it is not feasible to revert to the earlier process; or that the Government will not do so if the Court determines the process for termination of it was flawed.

The alleged direction – statutory context

  1. Although the application for a statutory order of review and the proposed amended application refer to an instruction having been issued to NQBPC pursuant to s 114 of the GOCA, Waratah’s submissions rest on its alternative case that an instruction was given pursuant to s 115 of the GOCA.  As developed, Waratah’s case is that the Shareholding Ministers’ letter amounted to a direction to terminate the Preferred Respondent process. 
  1. Section 114 permits the Shareholding Ministers to notify the GOC’s board in writing of a public sector policy that is to apply to the GOC and its subsidiaries if the Shareholding Ministers are satisfied that it is necessary to give the notification in the public interest. Section 114 provides:

Reserve power of shareholding Ministers to notify board of public sector policies

 

(1)The shareholding Ministers of a GOC may notify the GOC’s board, in writing, of a public sector policy that is to apply to the GOC and its subsidiaries if the shareholding Ministers are satisfied that it is necessary to give the notification in the public interest.

 

(2)The board must ensure that the policy is carried out in relation to the GOC and must, as far as practicable, ensure that the policy is carried out in relation to its subsidiaries.

 

(3)Before giving a notification under this section, the shareholding Ministers must –

 

(a)consult with the board;  and

 

(b)request the board to advise them whether, in its opinion, carrying out the policy would not be in the commercial interests of the GOC or any of its subsidiaries.

 

(4)The shareholding Ministers must cause a copy of the notification to be published in the gazette within 21 days after it is given.

The alleged direction in this proceeding was not in the form of a notification of a “public sector policy” of the kind envisaged by s 114. 

  1. Section 115 provides:

Reserve power of shareholding Ministers to give directions in public interest

 

(1)The shareholding Ministers of a GOC may give the GOC’s board a written direction in relation to the GOC and its subsidiaries if the shareholding Ministers are satisfied that, because of exceptional circumstances, it is necessary to give the direction in the public interest.

 

(2)The board must ensure that the direction is complied with in relation to the GOC and must, as far as practicable, ensure that it is complied with in relation to its subsidiaries.

 

(3)Before giving the direction, the shareholding Ministers must –

 

(a)consult with the board;  and

 

(b)request the board to advise them whether, in its opinion, complying with the direction would not be in the commercial interests of the GOC or any of its subsidiaries.             

 

(4)The shareholding Ministers must cause a copy of the direction to be published in the gazette within 21 days after it is given.

  1. Section 116 is not presently relevant. Section 117 provides:

GOC and board not otherwise subject to government direction

 

Except as otherwise provided by this or another Act, a GOC and its board are not subject to direction by or on behalf of the Government.”

  1. Section 117 does not, in terms, contain a prohibition, subject to other provisions of the GOCA or another Act, upon the giving of a direction.  In terms, it states that a GOC and its board “are not subject” to such a direction.  A GOC and its board can ignore a direction unless provision is made in the GOCA or another Act for a direction to be given by or on behalf of the Government.  Section 115 permits such a direction to be given by the Shareholding Ministers.  Expressed differently, the only effective direction that can be given by the Shareholding Ministers under the GOCA is one given pursuant to s 115.
  1. As can be seen, s 115 permits the Shareholding Ministers to give a written direction only if they are satisfied that, because of exceptional circumstances, it is necessary to give the direction in the public interest. Section 115(3) requires the Shareholding Ministers to consult with the board and request the board’s advice in accordance with s 115(3)(b) before giving the direction. If the direction is given then the board must comply with it, and the Shareholding Ministers must cause a copy of the direction to be published in the gazette within 21 days after it is given.

Was there a direction?

  1. It is not necessary to canvass the various grounds of judicial review upon which the alleged direction is challenged in the application or in the proposed amended application. They include non-compliance with s 115(3) and (4).
  1. The respondents seek to have the proceeding dismissed on a number of grounds. The first is that it is misconceived since the alleged direction was not given by the Shareholding Ministers. The proceeding is said to be based on a false premise, namely that the direction was given. Since no direction was given, NQBPC could not have implemented it.
  1. The respondents’ contention that the Shareholding Ministers’ letter does not constitute or evidence a direction is supported by affidavit material about searches undertaken at the direction of the Commercial Counsel for Queensland Treasury and Trade, and separate searches undertaken by NQBPC, which did not locate a record of a direction being issued under ss 114 or 115 of the GOCA
  1. Waratah responds that searches directed to finding a direction under ss 114 or 115 may have been based on the mistaken assumption that a formal direction was required, whereas the relevant inquiry should have been whether there was any direction from the Shareholding Ministers to NQBPC to terminate the Preferred Respondent process, even an informal direction.  Waratah submits that the respondents ought to have searched for documents demonstrating any direction.  It seek directions for disclosure of:

“(a)emails, letters, faxes and other correspondence passing between Mr Nicholls, NQBPC, Mr Scott Emerson and Mr Jeff Seeney or any of them, including correspondence created by the departments of which Messrs Nicholls, Emerson and Seeney are Ministers in respect of the proposed T4 to T9 development, including its termination;

 

(b)all internal memoranda, minutes of meetings, advices, reports and internal correspondence (including emails, letters and faxes) of respectively, Mr Nicholls (including such documents created within the Treasury Department) and NQBPC in respect of the proposed T4 to T9 development, including its termination.”

during the period from 18 May 2012 to 12 July 2012. It also seeks disclosure of particular documents which are referred to in the minutes of meetings of NQBPC on 22 May and 26 June 2012. The further documents which Waratah seeks are said to have the potential to provide additional context in respect of the Shareholding Ministers’ letter, which Waratah contends amounted to a direction to terminate the Preferred Respondent process.

  1. Waratah submits that the proceeding should not be terminated at this stage under s 48 of the JRA, or r 16(e) of the Uniform Civil Procedure Rules 1999 (Qld).  As to the power to dismiss under s 48 of the JRA, reliance is placed upon Von Stalheim v Anti Discrimination Tribunal in which the Supreme Court of Tasmania considered that dismissal of a claim for judicial review under comparable legislation should be reserved for a case which is “very clear.”[9]   More generally, Waratah relies upon principles that summary judgment should be granted “only in the clearest of cases where there is a high degree of certainty about the ultimate outcome of the proceedings if they went to trial.”[10]
  1. The ultimate outcome of the proceeding depends upon Waratah proving its case that the Shareholding Ministers’ letter amounted to a direction to terminate the Preferred Respondent process.
  1. I proceed on the basis that a direction need not be cast in express terms of a “direction” or “requirement,” let alone be one that is expressly stated to be made pursuant to s 115 of the GOCA.  The word “direction” in the context of ss 115 and 117 of the GOCA connotes an authoritative or binding instruction.[11]  An effective direction under s 115 must be in writing.  A direction, whether in writing or otherwise, need not be given in a particular form.  Whether or not a direction has been given is a question of fact.  Where, as here, the direction is alleged to have been given in a letter, the issue of whether the alleged direction was given depends upon the proper construction of the document, viewed in its context.  I have regard to the context upon which Waratah relies being:

 

(a)the Minister for State Development, Infrastructure and Planning’s letter to NQBPC dated 18 May 2012;

 

(b)the minutes of the board meetings of NQBPC on 22 May and 26 June 2012; and

(c)NQBPC’s letter to the Shareholding Ministers on 26 June 2012.

  1. A direction to a board may be given informally, even subtly, and if it is, then it will be ineffective unless it complies with s 115 or is authorised by another statutory provision. The issue of whether a letter constitutes a direction is not determined by whether the document is styled as conveying advice, as distinct from a “direction” or some other requirement. Something presented as polite “advice” from the Shareholding Ministers may convey the meaning that the Shareholding Ministers wish something to occur and that they are, in effect, giving a direction. Whether or not such a direction is given turns upon an objective assessment of the letter, considered in its proper context. It is possible to imagine a direction in fact being given without this being the Shareholding Ministers’ actual intention. Equally, it is possible to imagine the Shareholding Ministers subjectively intending to direct a board about a particular matter, but the words of their letter or other communication failing to actually convey their intention.
  1. A direction might be given in a subtle or polite form. Still, the words used must in fact amount to a direction. Something which is incapable of being a direction, such as advice that the Shareholding Ministers do not oppose a proposed course of action, or agree with it, cannot be fairly construed as a direction.
  1. Waratah submits that the Shareholding Ministers’ letter constitutes a direction (albeit a subtle one) to NQBPC to terminate the earlier process and that, given the context in which the letter was written, the issue of whether a direction was given or not should be determined at trial.
  1. I have previously outlined the context in which the letter was communicated. The letter was written against the background of the withdrawal of Government support for the MCF and T4 – T9 process, as conveyed in the Minister for State Development, Infrastructure and Planning’s letter to NQBPC of 18 May 2012. The withdrawal of Government support placed negotiations with parties who had entered into APRAs in a state of uncertainty as to the future of the APRA and the future development at Abbot Point. By 26 June 2012 the board of NQBPC had adopted the position, subject to the advice of the Shareholding Ministers, to terminate the APRAs with Vale, Anglo and MacMines and to terminate the T4 – T9 process. The immediate context to the Shareholding Ministers’ letter is NQBPC’s letter of 26 June 2012 to which it responded.
  1. NQBPC’s letter of 26 June 2012 is headed “Port of Abbot Point : Appointment of Preferred Respondent Agreement (APRA).” This reflects its subject matter. The Government’s decision to withdraw further support for the development of the MCF and T4 – T9 process is taken as a given. The letter reports that NQBPC had been engaged in discussions with Queensland Treasury about a development path that sought private sector parties to fund required infrastructure, minimising the balance sheet impact and risk to the State. Against that background, the letter addressed the fact that three APRAs were in place and that each of the three Preferred Respondents who had executed APRAs had inquired of NQBPC as to the future of the APRA and their status with respect to future development at the port. The letter reported that, following discussions with officers of the Department of State Development, Infrastructure and Planning, NQBPC believed that the APRAs should be terminated to formally conclude those negotiations. The letter concluded by anticipating the Ministers’ advice “that it is appropriate to terminate the APRAs after 30 June 2012.”
  1. In short, NQBPC’s letter, which provides the immediate context to the Shareholding Ministers’ letter, reported its intention to terminate the APRAs and provided the Ministers with an opportunity to advise the board whether they wished it to pursue a different course with respect to offering the proponents an extension to the APRA and the Exclusivity Period.
  1. The opening sentence of the Shareholding Ministers’ letter indicates that it was responsive to that specific issue. It noted the background to that issue, being the Deputy Premier’s statements about the future development of the port by the private sector. It concluded by noting that NQBPC was to advise the respondents of NQBPC’s intention to terminate the T4 – T9 process, and suggested that NQBPC might flag the Government’s broader intentions to consult on future development options, and thereby seek to retain their interest in an expansion of the port.
  1. It is implicit, if not explicit, that the Shareholding Ministers agreed with NQBPC’s proposed approach in terminating the APRAs, and had no opposition to NQBPC’s intention to terminate the T4 – T9 process. The terms of the letter indicate that the Shareholding Ministers agreed with the corporation’s intentions in that regard.
  1. In construing whether the Shareholding Ministers’ letter constitutes a direction, a number of matters are worthy of note. NQBPC’s letter of 26 June 2012 did not seek a direction to terminate the T4 – T9 process, for example, in circumstances in which NQBPC remained committed to that process. Next, no occasion arose for the Shareholding Ministers to give such a direction because NQBPC proposed to formally conclude negotiations with respondents who were parties to APRAs. The Shareholding Ministers’ letter indicated no opposition to NQBPC’s intended termination of the T4 – T9 process. The Shareholding Ministers’ letter responded about the specific matter in respect of which their advice was sought, namely NQBPC’s intention to not offer proponents an extension to the APRA and the Exclusivity Period. The Ministers’ response recorded no opposition to that course and was supportive of it. The letter implicitly supported both the conclusion of negotiations with the three identified Preferred Respondents through the termination of their APRAs, and NQBPC’s “intention to terminate the T4 – T9 process.” No occasion arose for the Shareholding Ministers to direct, require or even suggest that NQBPC terminate the T4 – T9 process. The Ministers’ letter records that NQBPC had that intention.
  1. The material before me indicates that the proceeding is premised on a false assumption, namely that the first respondent instructed or directed NQBPC to terminate the process for identification of Preferred Respondents and negotiation with Preferred Respondents in respect of their proposed development of T4 – T9. There is no evidence before me that such a direction was made. The Shareholding Ministers’ letter, both in its terms and in its context, does not disclose that such a direction was made.

Should the proceeding be dismissed or set aside because it alleges a decision by the Minister that was never made?

  1. Waratah submits that it is at a disadvantage because it does not have access to all the documents which would show the complete context of the impugned alleged decision of the Shareholding Ministers. The respondents have declined to provide copies of certain documents, including documents which are referred to in the minutes of the NQBPC board meeting held on 22 May 2012 and 26 June 2012. By a separate application Waratah seeks disclosure from the respondents.
  1. I doubt whether the documents sought are likely to provide any additional, relevant context to the Shareholding Ministers’ letter. Documents passing between Ministers and their departments in respect of the proposed T4 – T9 development, including its termination, are unlikely to provide much more context than the letter to which the Shareholding Ministers’ letter responded and the other matters presently pointed to by Waratah as providing a relevant context. It is possible that such communications, and internal memoranda in respect to the proposed T4 – T9 development, including its termination, may anticipate, in the light of the State Government’s announcement on 18 May 2012, that the T4 – T9 process would be terminated. The existence of correspondence passing between Ministers and internal memoranda anticipating the termination of that process would be unremarkable. Once the State Government communicated its decision to not support the previous project, the commercial and practical reality was that the proposed T4 – T9 development would be terminated.
  1. Without evidence that the Shareholding Ministers actually directed NQBPC to terminate the Preferred Respondent process, Waratah is essentially left with the Shareholding Ministers’ letter which does not constitute such a direction. The inability of Waratah to make out the factual basis upon which its proceeding is premised would justify the judicial review proceeding being dismissed pursuant to s 48 of the JRA because, in the absence of any evidence or other basis to reasonably suppose the alleged direction was given, it would be inappropriate to grant the relief, the proceeding would disclose no reasonable basis and it would be inappropriate for it to be continued.[12]  Likewise, in the absence of any evidence that the alleged direction was made, the remaining part of the proceeding, which does not rely upon the JRA, would also be struck out, there being no reasonable basis for the allegation that the Shareholding Ministers’ letter constituted or evidenced a direction.  In those circumstances, the ultimate outcome of the proceeding appears clear, the essential factual foundation for it being misconceived.
  1. The ultimate outcome of the proceeding turns on a question of construction of the letter, in its context. It seems unlikely that the additional disclosure which is sought will add to the context or alter the context which I have described. The ultimate issue is not whether the Ministers intended their letter to constitute or confirm a direction, or whether individuals within the Government and within NQBPC interpreted the letter as amounting to a direction. There is no evidence that the letter was treated as a direction by those to whom it was sent. There was no application to cross-examine the CEO of NQBPC or any other deponent on behalf of the respondents to establish that the letter, or any other communication, was treated as an informal direction. As noted, the fact that no-one apparently treated the letter as constituting a direction is not decisive of the issue of whether the letter in fact constitutes a direction. However, it does not assist Waratah’s case.
  1. On the material before me, Waratah’s case that the Shareholding Ministers’ letter amounted to a direction to terminate the Preferred Respondent process is not fairly arguable when regard is had to the letter’s terms and its context.
  1. Given the seriousness of dismissing a proceeding prior to trial, and Waratah’s hope that additional documents will provide a more complete context, I will defer dismissing the application under the JRA pursuant to s 48 and the balance of the proceeding pursuant to r 16 or my inherent jurisdiction until certain disclosure is given.  I address the extent of such disclosure at the conclusion of these reasons.

Application to extend time within which to bring the JRA application

  1. The application sought an extension of time pursuant to s 26(1)(b) of the JRA in respect of the application to review “the NQBPC Decision,” which is defined in the application as the decision communicated on 12 July 2012, and which is alleged to be a decision made pursuant to the “Shareholding Minister’s Decision.”  If the first respondent, or the Shareholding Ministers jointly, made the Ministerial decision alleged, then there would be no need for an extension of time within which to challenge it pursuant to the JRA, since Waratah was not notified of that alleged decision prior to the commencement of the proceedings.  If, however, the alleged Shareholding Minister’s decision was not made, then there would be no merit in the proceeding against NQBPC, since the NQBPC Decision is alleged to have been one taken by NQBPC pursuant to the alleged instruction/direction of the Minister. 
  1. In determining whether to grant an extension of time pursuant to s 26 of the JRA, consideration should be given to:

 

(a)the explanation given for the delay;

 

(b)whether the grant of an extension would be fair and equitable in the circumstances; and

 

(c)the merits of the application for review.[13]

  1. I have previously remarked upon Waratah’s explanation for the delay in commencing the proceedings. I do not find its explanation persuasive. Whether the grant of an extension would be fair and equitable depends upon a wide range of circumstances including prejudice to the respondents, third parties and the public interest.[14]
  1. In the present case the relevant circumstances include the fact that Waratah did not advance its case to be made a Preferred Respondent in the previous process by entering an APRA within the time required, and that it, other interested parties, NQBPC and the State have embarked upon a new process in respect to the expansion of the port. There would be a prejudice to the interests of third parties and to the public interest in extending time so as to enable Waratah to jeopardise the new process and seek orders for the reinstatement of the abandoned process.
  1. In some cases in which an extension of time is sought within which to commence judicial review proceedings it is not possible to form a view about the applicant’s prospects of success.[15]  Often it is not appropriate in determining an application for an extension of time to embark upon an assessment of the merits.  However, if the prospects of success of a substantive application are plainly strong or plainly weak, then that may be relevant to the application for an extension of time.[16]  For the reasons which I have already given, Waratah’s prospects of success on the substantive application as against NQBPC are plainly weak and, in the absence of further relevant documents, it has no real prospect of establishing that the impugned direction was given.
  1. For these reasons, and for the additional reasons which follow, I am disinclined to exercise my discretion to extend time in respect of the application to review the alleged NQBPC Decision.

The availability of relief under the JRA against the alleged decision of NQBPC

  1. An additional reason to not grant an extension of time to bring the application under the JRA against the alleged NQBPC Decision is that the decision is not amenable to review under the JRA.
  1. NQBPC submits that the application against it proceeds on an incorrect factual premise (namely that the alleged direction was made) and also seeks to subject to judicial review decisions or conduct which are not amenable to it. As to the latter, it submits that the decision to terminate the process was not one made “under an enactment” and, in addition, review of that decision is expressly excluded by s 18A of the JRA.
  1. Of course, if there was no direction of the kind alleged in paragraph 1 of the application for statutory order of review, namely an instruction by the Shareholding Minister to terminate the process, then there was no NQBPC Decision as alleged in paragraph 2 of the application, being a decision allegedly made by NQBPC acting pursuant to the alleged instruction. There was, however, a decision by NQBPC, communicated in its letter to Waratah on 12 July 2012, whereby the process in respect of the development of proposed terminals 4 – 9 was terminated. If that decision was made in the absence of a direction from the Ministers (or either of them) or was made by NQBPC without appreciating that there had been such a direction, then it would not be a decision made pursuant to s 115(2) of the GOCA, being a decision made in compliance with a direction. 
  1. The conduct of the T4 – T9 development process was in the nature of a commercial tender, and NQBPC did not exercise or need to exercise a statutory power to undertake such a process. The decision by a GOC to terminate such a process is a characteristic of any legal entity, and is not a decision “under an enactment” within the meaning of the JRA merely because the GOC is a creature of statute.[17]
  1. Section 18A of the JRA provides that the JRA does not apply to decisions of a GOC mentioned in Schedule 6.  Schedule 6 refers to, amongst other things, a port authority within the meaning of the Transport Infrastructure Act 1994 (Qld)  that is a GOC, and refers to s 486 of the Transport and Infrastructure Act 1994 (Qld).  That section in turn provides that the JRA does not apply to a decision of a transport GOC made in carrying out its “excluded activities.”  Its “excluded activities” are defined to include “commercial activities.”  Section 486(3) defines “commercial activities” to mean activities conducted on a commercial basis.  NQBPC submits that its activities in relation to the development of the port, including its decision to terminate the T4 – T9 process, are such commercial activities.
  1. Waratah submits that the activities of NQBPC were “in reality quasi-governmental and not commercial”, and submits that in terminating the process it was not acting for commercial reasons, but was implementing a government policy.
  1. The development of the port, and the process by which NQBPC acquires access to land and enters agreements to fund investment in port infrastructure, are part of its commercial activities. The process of selecting Preferred Respondents and entering into APRAs with them, with a view to having a preferred developer develop a site are part of its commercial activities.
  1. The fact that NQBPC was compelled, by lack of Government support for the T4 – T9 proposal, to terminate its plans does not alter this fact.  The lack of Government support for the proposal meant that NQBPC could not expect to secure the necessary land or obtain financial support from the Government to advance the commercial venture. 
  1. The “commercial activities” referred to in s 486 of the Transport Infrastructure Act 1994 (Qld) might be contrasted with the corporation’s non-commercial activities including its regulatory functions such as the promulgation of port rules for the safety and efficiency of the port and operational activities such as emergency plans, port security and responding to environmental hazards such as oil pollution.
  1. Its commercial activities necessarily are undertaken in the context of government economic, financial and environmental policies. For example, economic, environmental and taxation policies of federal and state governments will govern demand by the coal industry for port access. That the development of port facilities and the awarding of contracts in respect of such facilities occur in the context of government policies does not alter the fact that processes for awarding contracts for proposed port facilities constitute activities that are conducted on a commercial basis and are therefore “commercial activities.”
  1. I conclude that NQBPC’s decision to terminate the process of negotiation with Preferred Respondents in respect of the proposed development of terminals 4 – 9 was made in carrying out its “commercial activities” and is therefore an excluded activity within the meaning of s 486 of the Transport Infrastructure Act 1994 (Qld).  As a result, the JRA does not apply to its decision.
  1. The same conclusion applies in respect of the proposed amended application which seeks to challenge the NQBPC decision on the alternative basis that the decision to terminate the “Preferred Respondent Process” in respect of the proposed development of terminals 4 – 9 was made by NQBPC “acting on its own initiative.”
  1. In circumstances in which a decision which is sought to be reviewed is not subject to the JRA, the application for relief under the JRA against the NQBPC should be dismissed pursuant to s 48 of the JRA

Lack of utility of the relief sought and the futility of the proceeding

  1. The final basis upon which the respondents apply to dismiss the proceeding is that it is futile. Particular reliance is placed upon the fact that Waratah was “recalcitrant” in complying with conditions which applied in becoming a Preferred Respondent and entering into an APRA under the old process, and that a new process has been established seeking expressions of interest in respect of a different expansion of the port. Matters are said to have moved on such that it is impossible, in the light of government policy, to revert to the earlier process.
  1. The same arguments concerning the lack of utility of the relief sought are developed in respect of the relief sought under the JRA and the other relief sought by Waratah, which seeks a declaration of invalidity pursuant to s 10 of the Civil Proceedings Act 2011 (Qld) or alternatively under the Court’s inherent jurisdiction.  Section 10 of the Civil Proceedings Act 2011 (Qld) permits the Court to hear an application for a declaratory order only and to make a declaratory order without granting any relief as a result of making the order.
  1. For present purposes I shall assume, contrary to my earlier conclusions about the making of the alleged direction, that the Shareholding Ministers made such a direction and that NQBPC made its decision to terminate the Preferred Respondent process in respect to the proposed development of terminals 4 – 9 by acting in compliance with the alleged direction. If such decisions were made and if they were found to have been flawed, for example, because of a failure to comply with s 115 of the GOCA, then an issue would arise as to whether the Court would exercise its discretion to declare each decision to be invalid and to order that each decision be set aside. 
  1. An invalid administrative act is not void or a nullity until a Court declares it to be so.[18]  The power to grant declaratory relief is discretionary.  Relief by way of judicial review may be refused if, in all the circumstances, that seems the proper course.[19]  Relief should not be withheld on idiosyncratic grounds.  The discretion is to be exercised judicially.  Prerogative orders and constitutional writs may be refused, as a matter of discretion, where the circumstances justify the remedy being withheld.  One such circumstance is where “no useful result could ensue.”[20]  As has been said, relief should be conserved to cases “where it is appropriate and required to do practical justice.”[21]
  1. The discretion to order declaratory relief depends on all the circumstances, and a declaration will not be made where it lacks utility.
  1. If, contrary to the current state of the evidence, the Shareholding Ministers gave the alleged direction, then it may be the case that NQBPC decided to terminate the Preferred Respondent process in respect of the proposed development of terminals 4 – 9 without appreciating that it had received such a direction and, instead, acting on the basis that the Shareholding Ministers had no objection to its proposed course of action.
  1. The Shareholding Ministers’ letter referred to the corporation’s “intention to terminate the T4 – 9 process” and the evidence, including the corporation’s own letter of 26 June 2012 suggests that NQBPC had such an intention. Its intention to terminate that process and to develop a new process was based upon the policy which had been communicated by the Deputy Premier and Minister for State Development, Infrastructure and Planning on 18 May 2012. Assuming a direction was given by the Shareholding Ministers, the direction was one for the board to do something which it intended to do anyway. If the alleged direction had not been given, and instead the Shareholding Ministers had not responded, or responded in terms which simply noted the corporation’s intentions and their lack of any opposition to the proposed course, then NQBPC would have proceeded to terminate the process for the identification of Preferred Respondents in respect of T4 – T9. The practical result would have been no different.
  1. The current proceeding, and the proposed amended application, seek to set aside both the alleged “Shareholding Ministers’ Decision” and “the NQBPC Decision” and to order each decision in relation to their termination of the process back to the respondents “to be decided in accordance with law.” In practical terms it seeks to reinstate a process that has been abandoned, being a process which Waratah had not complied with by becoming a party to an APRA.
  1. Leaving aside the fact that the declaratory relief lacks merit for the same reason that the other relief lacks merit, namely that it is based upon a hypothetical direction, the relief sought is said to lack utility because, without the State Government’s support for the MCF and T4 – T9 process, it would be pointless for NQBPC to pursue it. State land is required for the process to be undertaken, and the withdrawal of State Government support means that the process cannot be advanced.
  1. The respondents submit this is not a case where a declaration would inform the future conduct of the parties. The declaration would be in relation to the alleged invalidity of the supposed direction. Whether or not that direction was invalid or not would have no bearing upon a decision to revert to a process which has been abandoned and which, in practical terms, cannot be revived, since State Government policy is not to support it and the State controls the land required to implement it.
  1. Waratah submits that the evidence does not establish that events have moved on such that it is not feasible to revert to the earlier process, or that the Government will not do so if the Court determines that the process for termination of the development was flawed. I do not agree. The evidence shows that events have moved on and that State Government policy concerning the terminated process makes it impossible to revert to it. One might ask why any responsible government would revert to the earlier process, contrary to its assessment of what is required in the public interest, and having regard to its assessment of the financial, environmental and other constraints upon a development of the magnitude of what was previously proposed.
  1. If a court concluded that the process for termination of the T4 – T9 process was flawed because a direction was given and implemented, contrary to the requirements of s 115, then the flaw in the process would be one arising out of the form in which the Shareholding Ministers’ letter was phrased. If, contrary to the evidence before me, a direction was given, then such a direction was unnecessary because the T4 – T9 process was at a practical end, and NQBPC intended to terminate it and also to terminate the APRAs with three parties.
  1. One is not concerned in this case with an allegedly flawed decision in determining an application or some other decision which a government Minister was required to make. The Shareholding Ministers were not required to make a direction. If the supposed direction was given and if it is liable to be set aside on administrative law grounds, then the Shareholding Ministers are not obliged to give a new direction. They might as well let the matter rest.
  1. The contention that the alleged decisions should be set aside and the respondents required to “decide the matter according to law” assumes that the Shareholding Ministers are required to make a decision about whether to make a direction or not. In addition, NQBPC might make a decision to terminate the process on its own initiative, and in the absence of any direction.
  1. There is no suggestion that the Government has altered or will alter its view that the old process does not deserve Government support. It has commenced a new process for expansion of the port. It is unrealistic to suppose that the Government would revert to the old process if a court found that there had been a flaw because Shareholding Ministers gave a direction they were not required to give. Any court declaration would not relate to the earlier State Government decision in May 2012 to withdraw support for the previous process. Any court declaration would not require the Government to reconsider that policy decision and to revert to the old process.
  1. Waratah argues that its judicial review proceeding has utility even if the process for identifying Preferred Respondents for terminals 4 – 9 cannot be recommenced and that it has an interest in the determination of the matters raised in its application. It points to the $550,000 it expended in the course of the Preferred Respondent process for terminals 4 – 9, and says those expenses have been wasted as a result of the termination of the process. That may explain its interest in the matter and why it is an aggrieved party. However, the relevant documents show that it was always exposed to the risk of expending monies in a process which might be terminated or fail to proceed because essential land could not be acquired. If and when the State Government withdrew support for the previous proposal, NQBPC would lack the land and any required State Government financial support to make the development a commercial reality.
  1. Next, Waratah argues that its application raises critical questions about the relationship between NQBPC and its Shareholding Ministers which will continue to be relevant in any new process for development of the port. It argues that it has an interest in clarifying the extent to which the Shareholding Ministers may intervene informally. However, these proceedings are not necessary to clarify that issue. A direction remains a direction, even if given informally.
  1. Finally, Waratah argues that even if the Court concludes that, for discretionary reasons, it should not grant declaratory relief, there is nonetheless utility in the Court making findings about the matter which will inform the future conduct of the parties.
  1. I do not see any utility in such an exercise. A finding of fact about whether a direction was made or not in respect of a process which was terminated, and which has no prospect of being revived, is unlikely to have any practical bearing upon the future conduct of the parties in relation to a different process. A finding (without a remedy) as to a past process is unlikely to have any bearing upon the conduct of a different process.
  1. On the material before me, the Court will not find that the supposed direction was made. In the unlikely event that such a finding was made, a finding that a direction was made is not one which would be expected to cause NQBPC or the State Government to restart the abandoned process. To do so would be to fly in the face of the practical reality that the process lacks the support of the State Government and has been overtaken by events. A finding that the termination of the previous process was flawed in some respect would not justify the previous process being restarted, especially in circumstances in which third parties have since abandoned the old process and embarked upon a new process, at considerable expense. A Court declaration that there had been a procedural flaw in the process for terminating the old process would do little to inform the future conduct of the parties (and the future conduct of affected third parties) in relation to a new process.
  1. Waratah, which refused to comply with conditions and a timetable governing the old process, has a poor claim to seek declaratory relief so as to re-instigate that process, being a process which lacks essential support from the State Government which owns the relevant land and which declines to financially support the previous process.
  1. Granting the relief sought would have implications for third parties who would need to be joined in the proceedings, being parties which have now embarked in good faith and at their expense upon a new process for the expansion of the port.
  1. The relief sought has no practical utility. It would be unrealistic and uncommercial for NQBPC to revive a process which is impractical in the light of State Government policy. Any apparent step taken by it to revive the previous process would be remarkable. It would amount to an attempt to revive a development, the realisation of which is beyond its control, being a development which is not supported by the State Government, whose support is essential. To go through the motions of revisiting the abandoned process, whilst still progressing an entirely different process, would be a waste of time and money. It would confuse investors, proponents and the general public. It would involve the pretence that the abandoned process has some prospect of delivering the T4 – T9 development in circumstances in which State Government policy precludes such a development.
  1. The Court should not grant relief by way of declaratory relief, judicial review under the JRA or by way of prerogative relief if the relief lacks any utility.  No useful result could ensue by granting the relief claimed. 
  1. Because the proceeding and the relief sought in it lacks utility it should be dismissed.

Conclusion

  1. NQBPC was faced with a change in State Government policy. The withdrawal of State Government support for the previous proposal made it practically impossible for NQBPC to proceed with it. The State Government owns the land which would be required to develop the T4 – T9 terminals. The State Government announced that the proposal was on a scale that could not be supported by it. The State Government’s withdrawal of support for the development of T4 – T9 and the MCF required NQBPC to consider terminating Appointment of Preferred Respondent Agreements that it had with three entities (but not with Waratah) and to terminate the T4 – T9 process.
  1. In accordance with its statutory and other obligations to report to Shareholding Ministers, NQBPC on 26 June 2012 informed the Shareholding Ministers of its intention to not offer to extend the APRAs and the exclusivity period past 30 June 2012.  Having been informed of NQBPC’s intention to terminate the three APRAs and to terminate the T4 – T9 process, the Shareholding Ministers in their letter dated 6 July 2012 expressed no opposition to NQBPC’s proposed course of action.  NQBPC acted accordingly.  In terminating the process of negotiating with Preferred Respondents in respect of the development of proposed terminals 4 – 9 NQBPC made a commercial decision.
  1. There is no evidence that it did so on the basis of a direction by one or both of the Shareholding Ministers. The Shareholding Ministers’ letter which Waratah alleges amounted to a direction to terminate the process does not constitute a direction, even of an informal kind.
  1. The proceeding which Waratah has commenced is premised on a false assumption. The proceeding was commenced on a speculative basis, namely that the first respondent had issued a direction to terminate the process and that NQBPC had complied with that direction.
  1. There was no need for the Shareholding Ministers to give a direction, even an informal or subtle one, in circumstances in which the board of NQBPC had signalled its intention to bring the process to an end.
  1. Waratah’s proceeding lacks merit and has no real prospect of success because the letter which it points to as constituting the alleged direction cannot be fairly construed as conveying any such direction. Although proceedings, including proceedings for judicial review, should not be summarily terminated, except in the clearest of cases, a clear case for the dismissal of Waratah’s proceeding exists where it has failed to show that the Shareholding Ministers’ letter, in its context, constitutes a direction. Its case in that regard has no real prospects of success.
  1. I will, however, defer dismissing its proceeding to enable Waratah to obtain disclosure of any documents which constitute or evidence a direction.
  1. I have concluded that the decision of NQBPC to terminate the process for the development of terminals 4 – 9 at Abbot Point is not amenable to an application under the JRA because that decision was not made under an enactment and is excluded from judicial review by s 18A of the JRA.  Waratah has not made out a case for an extension of time within which to challenge NQBPC’s decision to terminate the process.  The decision is not amenable to an application under the JRA and the application lacks merit.
  1. The proceeding, both in seeking relief under the JRA, and in seeking additional relief, lacks utility.  The relief sought is futile in circumstances in which a new process has been established in respect of the expansion of the port, State Government policy does not make it feasible to revert to the earlier process and the supposed flaw in the process of termination (if established) would not require the Shareholding Ministers to consider making a further direction.  The Shareholding Ministers might simply permit State Government policy and the commercial decisions of NQBPC to take their course.  The previous process was terminated for commercial reasons in the light of stated government policy.  There is no basis to suppose that the State Government would revert to the abandoned proposed development which lacks its support and stall or even abandon the new process simply because a court found that an unnecessary direction was made by the Shareholding Ministers to terminate the previous process.
  1. The discretionary remedies which Waratah seeks will not be granted if no useful result could ensue from granting them. To grant the declaratory and other relief sought would be an exercise in futility. The previous process has been terminated, and a new process embarked upon. There is no basis to suppose that NQBPC, acting in accordance with its statutory and general law obligations, would revive a process which lacks State Government support and therefore has no practical prospects of being progressed. The practical and commercial realities which confronted NQBPC and which prompted it to terminate the previous process remain.
  1. NQBPC acted properly in reporting to the Shareholding Ministers its intention to terminate the previous process and its intention to not extend the APRAs. Having been informed of NQBPC’s intentions, the Shareholding Ministers responded and expressed no opposition to NQBPC’s proposed course of action. In doing so the Shareholding Ministers did not issue any direction. The proceeding is misconceived in alleging that such a direction was given by that letter. The proceeding is based upon the speculative allegation that the first respondent issued a direction. There is no evidence that he did. The Shareholding Ministers’ letter does not amount to such a direction and the additional documents which Waratah seeks seem unlikely to add to the context in which that letter came to be written and thereby to affect its proper interpretation.
  1. I am minded to dismiss the proceeding forthwith because the discretionary relief sought in it lacks utility and the Court should not permit a proceeding to continue which would not produce a useful result. However, I will make an order in relation to Waratah’s application for disclosure. Unless any documents disclosed pursuant to that order evidence the direction which Waratah alleges was made, and thereby place the Shareholding Ministers’ letter in a substantially different context, the proceeding will be dismissed on the additional ground that it is misconceived in alleging a Ministerial direction that was not in fact made.
  1. The only order which I intend to make at this stage is one adjourning the respondents’ application to a date to be fixed, with costs reserved.

Waratah’s application for disclosure

  1. Rule 209(1)(c) of the Uniform Civil Procedure Rules 1999 (Qld) contemplates that the Court may direct that disclosure by parties in accordance with Part 1 of Chapter 7 take place in a proceeding started by application.  There is no entitlement to disclosure in an application of the present kind.  But specific disclosure will be ordered in an appropriate case if to do so is in the interests of justice and if it facilitates the just and expeditious resolution of the real issues in the proceedings at a minimum of expense.  If a case is made out for disclosure, then a suitably-tailored order usually should be made, rather than simply expect disclosure to be made in accordance with Part 1 of Chapter 7.  One reason is that in a proceeding where there are no pleadings there may be scope for unnecessary disputes and misunderstandings about whether a document is “directly relevant to a matter in issue in the proceeding.”[22]  Another is that in any case in which disclosure is ordered, its scope should be defined and not be excessively wide.[23]
  1. Waratah seeks orders for disclosure in aid of its case that the Shareholding Ministers’ letter amounted to or evidences a direction to NQBPC to terminate the T4 – T9 process. The proper characterisation of that letter, or the conduct that is evidenced in it, is said to be a matter in issue in the proceeding, and Waratah submits that the “entire context of that conduct is directly relevant to its characterisation.”
  1. Waratah criticises the evidence given by the respondents about searches undertaken for documents that demonstrate that a direction was given to terminate the T4 – T9 process. It says that the searches attempted to locate a direction issued under s 114 and s 115, and that these searches were too narrow, since the respondents ought to have searched for documents demonstrating any direction. Supplementary affidavits were filed by the respondents in January and February 2013 concerning the scope of searches. The further detail of the searches undertaken within relevant sections of the Queensland Treasury are given in Mr Millman’s affidavit filed 14 January 2013.  Mr Millman reviewed documents that had been provided to him and swears that he did not locate any documents that demonstrate or evidence a direction having been given “under the GOC Act by the Shareholding Ministers” to NQBPC directing it to terminate the T4 – T9 development process.
  1. The CEO of NQBPC, Mr Fish, swore an affidavit filed on 15 January 2013 about searches which he caused to be undertaken “for notifications and directions issued to [NQBPC] of the kind referred to in the Application.” Waratah submits that this leaves much to conjecture as to the search that was carried out and that Mr Fish does not depose to searches for documents relevant to any direction by the Shareholding Ministers.  Mr Fish also caused searches to be undertaken for correspondence from the Shareholding Ministers to various individuals associated with NQBPC.
  1. The affidavit of NQBPC’s Legal and Governance Counsel, Mr Maycock, filed 28 February 2013 elaborates upon the searches and inquiries undertaken by him and those searches did not reveal any notifications or directions issued under s 114 or s 115 of the GOCA.  Waratah makes the point that Mr Maycock does not depose to searches for documents relevant to any direction from the Shareholding Ministers.
  1. Waratah seeks directions for disclosure of the documents which I have referred to in paragraph [56].
  1. The respondents oppose such orders. One ground of opposition is that the disclosure requested is “impermissibly wide.” The documents sought are not limited to the termination of the proposed T4 – T9 development. They extend to documents created by three departments in respect of the proposed T4 – T9 development. On any view, there would be numerous documents, and I accept Waratah’s submission that the documents requested are impermissibly wide in scope.
  1. Waratah has a valid point that at least some of the searches were in respect of a direction given under the GOCA, whereas the proceeding relates to an alleged direction which did not comply with the requirements for a direction under s 115.  Still, this does not justify a request for documents “in respect of the proposed T4 – T9 development, including its termination.”
  1. Not all documents in respect of the proposed T4 – T9 development are relevant to its termination, let alone an alleged direction to terminate the process. Documents which might show that Ministers, departmental officers and others anticipated (or even intended) that the T4 – T9 process would be terminated by NQBPC in the light of the announced State Government policy would not evidence that a direction of the kind alleged was made.
  1. The respondents correctly characterise the request for disclosure as being a fishing exercise. It goes beyond what is reasonably justified, namely documents which are directly relevant to a matter in issue in the proceeding, namely the making of the alleged direction which is alleged in the application for a statutory order of review to have been made on or after 21 May 2012 by the first respondent, and which is alleged in the proposed amended application for a statutory order of review to have been made on or about 9 July 2012 by the Shareholding Ministers.
  1. Although Waratah has not justified an order for disclosure in the terms sought in subparagraphs 2(a) and (c) of its application for disclosure filed 21 February 2013, I will exercise my discretion to order disclosure. The order will require disclosure of:

Any document within the period 18 May 2012 to 12 July 2012 which constitutes or evidences a direction to the second respondent by its Shareholding Ministers (or any one of them) to terminate the process for identification of Preferred Respondents and negotiation with Preferred Respondents in respect of the proposed development of terminals 4 to 9 at the Port of Abbot Point.”

The category of documents which I have ordered would include any document which anticipates that the Shareholding Ministers (or either one of them) will give such a direction, and any document that records that a direction was given.  The documents are not limited to those which constitute or evidence a direction given pursuant to the GOCA

  1. There may be no documents of the kind that I have ordered to be disclosed. But if there are they may provide some additional context to the Shareholding Ministers’ letter.
  1. The other category of documents in respect of which Waratah seeks disclosure are certain documents referred to in minutes of meetings of NQBPC on 22 May and 26 June 2012.  These are sought in subparagraph 2(b) of its application for disclosure.  I am not persuaded that these documents are directly relevant to a matter in issue in the proceeding or that I should exercise my discretion to order their disclosure.  If any of them evidence a direction of the kind alleged by Waratah then they will be disclosed in accordance with the order I propose to make.
  1. I will hear the parties about the date by which any disclosure is to be given and the terms of my proposed order. I will reserve the costs of Waratah’s application and the costs associated with the respondents’ compliance with the order I propose to make. Waratah’s application otherwise will be adjourned to a date to be fixed.   

Footnotes

[1] Government Owned Corporations Act 1993 (Qld), s 82.

[2] Government Owned Corporations Act 1993 (Qld), s 89(2).

[3] Government Owned Corporations Act 1993 (Qld), s 88.

[4] Government Owned Corporations Act 1993 (Qld), s 117.

[5] Government Owned Corporations Act 1993 (Qld), s 122(1)(a).

[6] Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663 at 665.

[7] Hoffmann v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369 at 372.

[8] Commcare v A’Hearn (1993) 45 FCR 441 at 444;  Westwood v Human Rights and Equal Opportunity Commission [2004] FCA 153 at [29] in respect of comparable federal legislation.

[9] Von Stalheim v Anti Discrimination Tribunal and KPMG; Von Stalheim v Anti Discrimination Tribunal, H M Wood and Statewide Independent Wholesalers [2009] TASSC 6 at [10].

[10] Westpac Banking Corporation v Hughes [2012] 1 Qd R 581 at 602 [74].

[11] Riddell v Secretary, Department of Social Security (1993) 42 FCR 443 at 450.

[12] Judicial Review Act 1991 (Qld), s 48(1).

[13] Hoffmann v The Queensland Local Government Superannuation Board (supra) at 372; Kuku Djungan Aboriginal Corporation v Christensen (supra) at 665.

[14] Hoffmann v The Queensland Local Government Superannuation Board (supra); see also Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

[15] Hoffmann v The Queensland Local Government Superannuation Board (supra).

[16] Hamden v Secretary, Department of Human Services [2013] FCA 3 at [40].

[17] JJ Richards & Sons Pty Ltd v Bowen Shire Council [2008] 2 Qd R 342 at 347 [22].

[18] Truenergy Australia Pty Ltd v Minister for Industrial Relations (2005) 93 SASR 393 at 413 [107]; BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd (No2) [2013] QSC 67 at [27] – [31]; Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1 at 16 [42].

[19] Allianz Australia Insurance Ltd v Crazzi (2006) 68 NSWLR 266 at 303 [224].

[20] R v Commonwealth Court of Conciliation Arbitration ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400;  cited with approval Re Refugee Tribunal;  Ex parte Aala (2000) 204 CLR 82 at 108 [56];  SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618 [28].

[21] SZBYR v Minister for Immigration and Citizenship (supra) at 629 [77].

[22] Uniform Civil Procedure Rules 1999 (Qld), r 211(1)(c).

[23] Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183.

Close

Editorial Notes

  • Published Case Name:

    Waratah Coal Pty Ltd v Nicholls & Anor

  • Shortened Case Name:

    Waratah Coal Pty Ltd v Nicholls

  • MNC:

    [2013] QSC 68

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    22 Mar 2013

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status