BPH - How the PEP11 court case will be won

Further to previous (lengthy) threads on why I think Asset Energy will win their court case, here is a brief(er) summary of why and and where to next:-

As per announcement 28/10/22, Asset Energy has appealed the JA decision on the following grounds:-

1. In making the Decision, the Former Prime Minister breached the requirements of procedural fairness in that he predetermined the Application and the purported decision was infected by actual bias.
2. Further or in the alternative, there was a reasonable apprehension of bias, in the form of predetermination, on the part of the Former Prime Minister, such that there was a denial of procedural fairness.
3. Further or in the alternative, in making the Decision, the applicant was denied procedural fairness because the Former Prime Minister, before determining the merits of the Application, failed to take into account the submissions made by the
applicant dated 22 January 2022.
4. Further or in the alternative, in making the Decision, the applicant was denied procedural fairness because the applicant was not provided the opportunity to respond to issues raised by NOPTA in relation to the applicant’s financial capacity.
5. Further or in the alternative, the Decision is void and of no effect because the Former Prime Minister was not validly appointed as the responsible Commonwealth Minister of the Joint Authority to administer the Department.

I believe Asset will prove the allegation of predetermination due to:-

Scott Morrison's public statements on 4/3/21 and 21/4/21
Keith Pitt's evidence that he intended to approve the application
Evidence in the Bell Report demonstrating the extreme lengths Scott Morrison went to in an attempt to have PEP11 cancelled, and to obtain the power to make the decision, and the dates he made those attempts
Evidence in the Bell Report verifying Scott Morrison had not been briefed by DISER at the time he made the public statements and he attempted to obtain the power to make the decision

I believe Asset can provide evidence that Scott Morrison was not validly appointed to the Joint Authority due to:-

The wording of the DISER instrument
Scott Morrison's statement in Parliament on 30/11/22 as follows:-

The documentation authorised by theGovernor-General carefully does not include any reference to being sworn to hold the office of minister for anyof the portfolios that were the subject of the Bell inquiry, simply to administer the department. This can be seenin appendix A, at pages 107 to 110 of the Bell inquiry report. This is a very important distinction. Just becausea minister is sworn to administer a department does not mean they hold the office of minister in that portfolio... Returning to the issue of being sworn, I was not sworn to hold the office of any of those ministerial portfolios,and, as a result, any contention that I served as minister of those portfolios in that office is false.

I believe Scott Morrison's exact words invalidate the decision as the OPGGS Act specifically states the decision is to be made by the Responsible Minister (i.e The Federal Minister for Resources), a position Scott Morrison now admits he did not hold. This is the issue identified by Kim Rubenstein SC back in August 2022. It is not clear to me if a Federal Court Judge can make that adjudication in which case it may be referred to the High Court. But, as noted above, the allegations made by Asset are "Further or in the alternative" so proving the allegation of bias by predetermination is sufficient for Asset to receive a favourable ruling.

Where to from here?

The matter is scheduled for a two day hearing in March 2023 noting that it was previously intended to be only a one day hearing.
There is a possibility of a mediation occurring prior to or after March 2023.
Our resident legal expert Flam predicts a six to twelve month timeframe from March 2023 for a decision. However, if the defence determine the case is unwinnable (i.e. a waste of taxpayers money to continue to defend the case) then the case may potentially be finalised earlier.

JMO. DYOR. GLTAH.