Australia: It was futile to make a decision on preliminary points when the court would hear and determine the issues in dispute by way of a rehearing

IN BRIEF

The case of Bond v Chief Executive Department of Environment and Heritage Protection [2016] QPEC 40 concerned an application in a pending proceeding filed in the Planning and Environment Court by Peter Bond which sought the determination of a preliminary point in an appeal against the decision of the Department of Environment and Heritage Protection to issue an Environmental Protection Order dated 25 May 2016 to Mr Bond.

Mr Bond alleged that the Environmental Protection Order was issued to him unlawfully in that it did not comply with the statutory requirements of an environmental protection order set out in section 360 of the Environmental Protection Act 1994 and that Mr Bond was denied procedural fairness.

The Court found that the Department complied with the requirements of an environmental protection order and that Mr Bond was not denied procedural fairness. The application was therefore dismissed.

COURT FOUND THE DEPARTMENT COMPLIED WITH THE REQUIREMENTS OF AN ENVIRONMENTAL PROTECTION ORDER UNDER THE ENVIRONMENTAL PROTECTION ACT 1994

Mr Bond alleged that the Environmental Protection Order issued to him was invalid in that the Department failed to determine whether there were special circumstances under section 521(2)(ii) of the Environmental Protection Act 1994 when stating the appropriate review or appeal details in the Environmental Protection Order.

It was submitted by Mr Bond that the Department in its letter dated 22 June 2016, which was sent in response to the application for review of the Department's original decision, accepted that there were special circumstances, and on this basis the Environmental Protection Order did not meet the statutory requirements under section 360 of the Environmental Protection Act 1994 and was invalid.

The Court found that there was no evidence to suggest that at the time of issuing the Environmental Protection Order the Department considered that special circumstances existed. In fact, the Court observed that the nomination of a 10 day period together with the relevant information in the Environmental Protection Order would suggest that the Department's view at the time was that no special circumstances existed.

Accordingly, the Court found that the Department had not failed to acknowledge special circumstances in stating the review or appeal details and therefore the Environmental Protection Order was not invalid.

COURT FOUND THAT IT WAS NOT MANDATORY FOR THE DEPARTMENT TO COMPLY WITH SECTIONS 521(5) OR 521(8) OF THE ENVIRONMENTAL PROTECTION ACT 1994 BY MAKING A REVIEW DECISION AND MR BOND WAS NOT DENIED PROCEDURAL FAIRNESS IN THE ABSENCE OF SUCH MANDATORY REQUIREMENT

If the Department did not comply with section 521(5) or 521(8) of the Environmental Protection Act 1994, the Department was taken to have made a decision confirming the original decision under section 521(10) of the Environmental Protection Act 1994.

Since it was not mandatory for the Department to make a review decision, the Court found that there was no right to compel the Department to make a decision. Accordingly, Mr Bond was not denied procedural fairness as a consequence of a deemed refusal of his application for review of the original decision.

COURT FOUND THAT IT WOULD BE FUTILE TO REQUIRE THE DEPARTMENT TO REVIEW THE ORIGINAL DECISION TO GIVE THE ENVIRONMENTAL PROTECTION ORDER OR TO GIVE A NEW ENVIRONMENTAL PROTECTION ORDER SINCE THE COURT HAD POWER TO HEAR AND DETERMINE THE DISPUTE BETWEEN THE PARTIES

The Court noted that Mr Bond lodged the notice of appeal within the statutory timeframe and the appeal would not be affected by the Department's decision or its conduct prior to the matter coming before the Court given that the appeal would be heard by way of a rehearing and the broad jurisdiction of the Court.

Further, there was no material before the Court which demonstrated that Mr Bond had suffered any prejudice by appealing in circumstances where the Department did not make a review decision.

Nonetheless, the Court considered the rules of natural justice and, by reference to the High Court decision of Stead v State Government Insurance Commission (1986) 161 CLR 141, noted that "not every departure from the rules of natural justice warrants a remedy if such a remedy would be futile". In this regard, the Court cited the following passage from the High Court decision:

"Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial."

The Court considered that it would be futile to require the Department to undertake a review of the original decision to issue the Environmental Protection Order or to issue a new Environmental Protection Order only because Mr Bond was not afforded a review of the original decision, since the Court would hear and determine the issues in dispute by way of a rehearing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Ian Wright
 
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