FEDERAL COURT OF AUSTRALIA
WAD 364 of 2019
Date of judgment:
Judiciary Act 1903 (Cth) s 39B
Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth)
Irwin v Military Rehabilitation & Compensation Commission  FCAFC 33; (2009) 174 FCR 574
Kovalev v Minister for Immigration and Multicultural Affairs  FCA 557; (1999) 100 FCR 323
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)  AATA 179; (1979) 2 ALD 634
Date of last submissions:
29 November 2019
National Practice Area:
Administrative and Constitutional Law and Human Rights
Number of paragraphs:
Solicitor for the Applicant:
Allen & Overy
Counsel for the Fourth Respondent:
Mr I Temby
Solicitor for the Fourth Respondent:
Counsel for the Fifth Respondent:
Mr A Shuy
Solicitor for the Fifth Respondent:
State Solicitors Office
GEOFF WHELAN, AS DELEGATE OF THE COMMONWEALTH-WESTERN AUSTRALIA OFFSHORE PETROLEUM JOINT AUTHORITY REPRESENTING THE RESPONSIBLE COMMONWEALTH MINISTER
RICK ROGERSON, AS DELEGATE OF THE COMMONWEALTH-WESTERN AUSTRALIA OFFSHORE PETROLEUM JOINT AUTHORITY REPRESENTING THE RESPONSIBLE STATE MINISTER
MINISTER FOR RESOURCES AND NORTHERN AUSTRALIA FOR THE COMMONWEALTH OF AUSTRALIA
MINISTER FOR MINES AND PETROLEUM; ENERGY; INDUSTRIAL RELATIONS
DATE OF ORDER:
BY CONSENT THE COURT ORDERS THAT:
1. The decisions made by the second and third respondents, as delegates of the fourth and fifth respondents (comprising the first respondent) (hereafter simply referred to as the 'first respondent') to refuse the applicant's applications for a suspension of conditions and extension of term of Permits WA-479-P and WA-487-P dated 9 July 2018 made under s 264 and s 265 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (Applications) be set aside from the time such decisions were made.
2. The Applications be remitted to the first respondent for further consideration in accordance with paragraph 4 of these orders.
3. The applicant shall provide to the National Offshore Petroleum Titles Administrator any material it wishes the first respondent to consider in support of the Applications within 30 days of the Court making these orders.
4. Following expiry of the period referred to in paragraph 3, the first respondent will, as soon as practicable, consider afresh and determine the Applications on the basis:
(a) of materials as have been provided by the applicant in support of the Applications by the expiry of the period described in paragraph 3 of these orders; and
(b) that they are applications for a suspension and extension, under the relevant provisions of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth), for a period of 24 months commencing on:
(i) 12 August 2018 for WA-479-P; and
(ii) 21 May 2019 for WA-487-P.
5. The proceedings be otherwise discontinued.
6. There be no order as to the costs of the proceedings and all reserved costs orders are hereby discharged.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 These proceedings concern petroleum exploration permits held by Pathfinder Energy Pty Ltd (Pathfinder). Pathfinder made application for the suspension of a condition and an extension of term for the permits under provisions of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). The applications were refused by the Joint Authority established under the legislation. Pathfinder commenced proceedings to review the decisions. The applications sought to invoke the jurisdiction of the Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and under s 39B of the Judiciary Act 1903 (Cth).
2 The claims were the subject of a mediation by a Registrar of the Court. Following mediation the parties sought orders by consent to the effect that the decisions be set aside and the applications be remitted for further consideration by the Joint Authority.
3 By reason that the proposed consent orders seek public law relief, the consent of the parties is an insufficient foundation, of itself, for the making of the orders. The Court must be satisfied that the proposed orders are within the public law jurisdiction of the Court and that it is appropriate to make the orders having regard to the public character of the relief. The relevant principles were described by French J in Kovalev v Minister for Immigration and Multicultural Affairs  FCA 557; (1999) 100 FCR 323. The principles in Kovalev have been applied by courts of appeal: see, for example, Fleet v District Court of New South Wales  NSWCA 363 at ; and Irwin v Military Rehabilitation & Compensation Commission  FCAFC 33; (2009) 174 FCR 574 at -.
4 The Court must be satisfied that there is a proper basis for concluding that there has been reviewable error. There does not need to be exacting inquiry into the basis for every order. If a basis for the orders is demonstrated then it is not for the Court to impede settlement between legally represented parties where the orders to be made to give effect to the settlement are within jurisdiction and have been demonstrated to be otherwise appropriate. Where, as is proposed in this case, orders are sought remitting the matter to the decision-maker, then reasons also fulfil the function of specifying the error to be addressed by the decision-maker upon reconsideration. Of course, unless there is power to make orders confining the extent of the reconsideration (and such orders are made), any reconsideration will be a full and fresh exercise of the relevant decision-making power.
5 The decisions in this case fell within the ambit of the Offshore Petroleum Exploration Guideline: Work-bid as in effect on 1 June 2015 (the Guideline). One of the matters addressed by the Guideline concerns whether the basis for the application was a risk that exceeded common commercial risk faced by all other industry participants. In a joint memorandum submitted by solicitors for all parties it was conceded that the Court may find that the delegates who comprised the Joint Authority for the purposes of making the decisions under review had applied the Guideline inflexibly as to matters relating to commercial risks and force majeure in particular respects stated in the joint memorandum. It is well established that a decision-maker making a decision by reference to a policy instrument must not apply the policy inflexibly without regard to whether the particular circumstances may justify a departure from policy: Re Drake and Minister for Immigration and Ethnic Affairs (No 2)  AATA 179; (1979) 2 ALD 634 at 640-641.
6 In the above circumstances I am satisfied that jurisdiction to make the proposed orders under the ADJR Act has been established and the particular ground of review has been demonstrated. Further, as the parties are represented by experienced solicitors and have reached agreement following mediation it is appropriate for the consent orders to be made. I am satisfied that there is no aspect of the public interest that arises for particular consideration. I note that the nature of the decision to be made by the Joint Authority is one to be made having regard to public interest considerations embedded in the decision-making process provided for by the statute. Therefore, those matters will be considered upon the redetermination.
7 For those reasons, and with the consent of the parties, I will make the orders sought.