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New Acland Coal Pty Ltd v Smith & Ors (No 2)  
Unreported Citation: [2018] QSC 119
EDITOR'S NOTE

In an earlier judgment, New Acland Coal Pty Ltd were successful in their application for judicial review of an administrative decision of the Land Court of Queensland. These reasons concerned the making of directions under s 30(1) of the Judicial Review Act 1991. Justice Bowskill considered that that provision empowers a court to refer a matter back to a different decision-maker, and to limit the scope of any further consideration. In the circumstances of this case, her Honour found it was appropriate to make both of those directions. 

Bowskill J

28 May 2018

Background

In the earlier judgment of [2018] QSC 88 (delivered 2 May), Bowskill J upheld a number of grounds in a judicial review application brought by New Acland Coal Pty Ltd. The review concerned a decision of the Land Court of Queensland recommending that applications for two mining leases and an amended environmental authority not be granted to New Acland. Notably, one of the grounds had been that there was apprehended bias in the reasons of the Land Court member. That particular ground failed. [1]–[4], [25].

These reasons concerned the final relief to be ordered by the Court. In particular, Bowskill J considered whether the matter should be referred back to a different member of the Land Court, and whether the scope of any further consideration should be limited. [1]–[4].

The power to make directions

Section 30(1) of the Judicial Review Act 1991 provides:

“On an application for a statutory order of review in relation to a decision, the court may make all or any of the following orders -

(a) an order quashing or setting aside the decision, or a part of the decision …

(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions … as the court determines;

(c) an order declaring the rights of the parties in relation to any matter to which the decision relates;

(d) an order directing any of the parties to do, or to refrain from doing, anything that the court considers necessary to do justice between the parties.”

Her Honour said that the power to make directions under sub-section (b) “includes, in a proper case, a power to direct that, on the matter being referred back to the Land Court for further consideration, the Land Court should be differently constituted” (citing Minister for Immigration and Multicultural Affairs v Wang (2013) 215 CLR 518). [12]. The proper exercise of such power is not limited to circumstances where a decision is set aside for apprehended bias, but extends to where it is “otherwise considered desirable, or in the interests of justice, for the further consideration to be by a different decision-maker”. [13]. The key question is whether there will be “a perception of a fair trial” if the matter is referred back to the same decision-maker (quoting Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1). [14].

Her Honour also considered that subsections (b) and (d) “confer broad power to make directions and orders” framed so as to “avoid unnecessary re-litigation, or re-examination of issues” (see Park Oh Ho v The Minister of State for Immigration and Ethnic Affairs (1989) 167 CLR 637). [28], [34]. Her Honour went into some detail in explaining why, contrary to a presumption of the parties, the High Court’s decision in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 did not require the whole matter to be considered afresh following the successful judicial review. [30], [33]. That decision concerned a “very different legislative context”. [32]. Her Honour noted that within that judgment, each of the High Court justices made reference to the possibility, in an appropriate case, of remittal on a narrower basis. [33].

Exercising the power to make directions in this case

Although the applicant had failed to establish that the Land Court’s decision was affected by apprehended bias, it now submitted that subsequent conduct of the member made it appropriate that the Court be differently constituted on remittal. In particular, at a costs hearing, the member had described part of the applicant’s judicial review application as an “indirect attack on my truthfulness”. The member said that he could not say how he might “respond subconsciously” in the disposition of the matters still before him. [21]. Justice Bowskill concluded that these comments were such as might “reasonably lead a fair-minded lay observer to apprehend that he might not bring an impartial, or objective, mind to any further consideration of this matter”. [24]. Accordingly, it was appropriate, in the interests of justice, for the matter to be remitted to a different member of the Land Court. [25].

As to the scope of any further consideration by the Land Court, Bowskill J noted that the successful grounds of review had concerned issues that were “discrete, and do not affect, or infect, the findings in relation to the other issues dealt with” in the Land Court’s reasons. [36]. Given the considerable amount of time and resources already expended – including over 100 hearing days in the Land Court – it would not be in the interests of the parties, or the administration of justice, for the matter to be referred back in a manner that would leave open the re-litigation of issues that were untouched by the judicial review. [35]–[37]. Accordingly, it was appropriate to direct that any further consideration be limited to the issues found to have been affected by legal error (and within the Land Court’s jurisdiction to consider). [38].

W Isdale