Federal Court of Australia

The Environment Centre NT Inc v Minister for Resources and Water [2021] FCA 1121

ORDERS

THE COURT ORDERS THAT:

1.    Orders 5 and 6 of the orders dated 6 August 2021 are vacated.

2.    The respondents are to file and serve an affidavit, by 5pm on 17 September 2021, from a person with knowledge of relevant events, which provides an explanation of the change in the respondents’ position from that stated in the letter from the Australian Government Solicitor of 3 September 2021, to that stated in the letter from the Australian Government Solicitor of 13 September 2021, including as to the absence of notice of that change of position being given to the applicant.

3.    The applicant is to file and serve on the respondents any amended originating application and concise statement by 21 September 2021.

4.    The respondents are to file their evidence, including any expert evidence in response and a bundle of documents setting out any decision-record, by 24 September 2021.

5.    The applicant is to file any evidence in reply, including any expert evidence, by 1 October 2021.

6.    The parties shall inform each other and the Court of any witnesses who are required for cross-examination by 19 October 2021.

7.    The applicant is to file and serve a written outline of submissions, not exceeding 15 pages in length, by 19 October 2021.

8.    The respondents are to file and serve a written outline of submissions, not exceeding 15 pages in length, by 26 October 2021.

9.    The parties shall discuss any objections to evidence and provide to the Court a list of any unresolved objections, with a brief statement identifying the basis for these objections, by 26 October 2021.

10.    The applicant is to file and serve any written submissions in reply, not exceeding five pages in length, by 29 October 2021.

11.    The matter be listed for a hearing for 2 days commencing at 10:15am on 2 November 2021 by Microsoft Teams, unless otherwise advised.

12.    Liberty to apply on 48 hours’ notice.

13.    Costs of the case management hearing on 14 September 2021 shall be the applicant’s costs in the cause.

THE COURT NOTES THAT:

1.    The Court notes the contents of the letter dated 13 September 2021 from the Australian Government Solicitor signed by Mr Jonathon Hutton.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from Transcript)

GRIFFITHS J:

1    The background to these proceedings is set out in two affidavits by the applicant’s instructing solicitor, Ms Anna Gudkov. The affidavits are dated 8 and 13 September respectively. The proceedings involve a judicial review challenge to a legislative instrument and a decision by the Minister for Resources and Water to grant funding to a company whose name is Imperial Oil & Gas Pty Limited. On 11 May 2021 the Minister made an instrument called the Industry Research and Development (Beetaloo Cooperative Drilling Program) Instrument 2021 (Cth) (the Beetaloo Instrument). The Beetaloo Instrument had the effect of prescribing the Beetaloo Cooperative Drilling Program in the Northern Territory as a program for the purposes of s 33 of the Industry Research and Development Act 1986 (Cth).

2    On 16 June 2021, Senator Larissa Waters moved a motion for the disallowance of the Beetaloo Instrument in the Senate. I understand that that motion is still unresolved. On 23 June 2021, the Senate agreed to refer to the Environmental and Communications References Committee for inquiry and report the matter of oil and gas exploration and production in the Beetaloo Basin, with particular reference to the Beetaloo Instrument. My understanding is that that Senate Committee has invited submissions and received submissions from various parties, including the applicant, but that the inquiry is still to be completed.

3    On or about 17 June 2021, the Minister made a decision to approve grants in the amount of up $21 million to Imperial pursuant to the program that I have described. On 7 July 2021, apparently for the first time, the Minister publicly announced that decision by way of media release. On 28 July 2021, the applicant, whose standing to bring these proceedings is not challenged by the Minister, filed an originating application for judicial review and relief, claiming that both the Beetaloo Instrument and the decision to make grant payments to Imperial were invalid and void on various grounds.

4    Also on 28 July 2021, the applicant sent an email to the Australian Government Solicitor acting for the Minister, serving the originating application and inviting the Minister to confirm that no contract had been entered into with Imperial. The Minister was also asked to provide an undertaking that no such contract would be entered into pursuant to the decision or any funds paid to Imperial under the decision until the judicial review proceeding in this Court was determined.

5    On 6 August 2021, and by consent of the parties, the court made various orders with a view to the matter proceeding to a hearing. Those orders included orders that both the applicant and the respondents file and serve concise statements of their positions regarding the relevant legal issues. The timing for the filing and serving of those concise statements was subsequently amended on 16 August 2021 to add a couple of more days. On that day the applicant filed its concise statement and noted that its letter of 28 July 2021 had not been responded to. On 30 August 2021, the Minister filed his concise statement, in which he said:

The Commonwealth has not yet entered any contract or arrangement with Imperial in relation to the carrying out of activities by Imperial pursuant to the decision or the payment of funds.

6    In the concise statement the Minister challenged the Court’s jurisdiction to review the decision, but not the Court’s jurisdiction under the Judiciary Act 1903 (Cth) to review the validity of the Beetaloo Instrument.

7    Some five weeks after the applicant sent the letter of 28 July 2021, on 3 September 2021 the Australian Government Solicitor wrote to the applicant referring to that letter which sought confirmation that no contract had been entered into pursuant to the decision of 7 July 2021 and also sought an undertaking. The letter stated:

We are instructed that the Minister intends to enter into a grant agreement with Imperial Oil & Gas consistent with his decision of 7 July 2021. We anticipate that this grant agreement will be entered into within the next two-three weeks.

8    In other words, the applicant was informed that the Australian Government Solicitor anticipated that a grant agreement would not be entered into before 17 September 2021. That is not what actually occurred. Subsequently, and without any prior notice to the applicant, on 9 September 2021 the Minister entered into one or more grant agreements with Imperial. No satisfactory explanation has been provided to date by the Minister for this unexpected change of course.

9    The matter having been raised in today’s case management hearing, I have directed that an affidavit be filed and served by 5 pm this Friday, 18 September 2021, which provides an explanation for the change in direction taken by the respondents’ with reference to the contents of the letter of 3 September written by the Australian Government Solicitor, and the letter written on 13 September advising the applicant for the first time that the agreements had been entered into on 9 September. It is apparent that the applicant first became aware of that development as the result of announcements made to the Australian Stock Exchange by Imperial.

10    As a result of today’s case management hearing, I have made orders with a view to this matter being heard for two days commencing on 2 November 2021. In the light of the events that have occurred, which on the face of it could only be described as unfortunate and not reflecting well on the Minister, I believe that it is appropriate that an order be made that the costs of today’s case management hearing be the applicant’s costs in the cause.

Associate:

Dated:    14 September 2021