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FEDERAL COURT OF AUSTRALIA
The Environment Centre NT Inc v Minister for Resourcesand Water[2021] FCA1121
ORDERS
THE ENVIRONMENT CENTRE NT INC
Applicant
AND:
MINISTER FOR RESOURCES AND WATER
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
DATE OF ORDER:
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 theFederal Court Rules 2011.
(Revised from Transcript)
GRIFFITHS J:
1The background to these proceedings isset 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 isImperialOil & Gas Pty Limited. On 11 May 2021 the Minister made an instrument called theIndustry Research and Development (Beetaloo Cooperative Drilling Program) Instrument 2021(Cth) (theBeetaloo Instrument). TheBeetaloo Instrumenthad the effect of prescribing the Beetaloo Cooperative Drilling Program in the Northern Territory as a program for the purposes of s 33 of theIndustry Research and Development Act 1986(Cth).
2On 16 June 2021,Senator Larissa Waters moved a motion for the disallowance oftheBeetaloo Instrumentin the Senate. I understand that thatmotionis 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 theBeetalooInstrument.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.
3On or about 17 June 2021,the Minister made a decision to approve grants inthe amount of up $21million toImperialpursuant to the program that I have described. On 7 July2021, apparently for the first time, the Minister publicly announcedthat decisionby way of media release. On 28 July2021,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 theBeetaloo Instrumentand the decision tomake grant payments to Imperialwereinvalid and void on various grounds.
4Also on 28 July2021,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. TheMinister wasalsoasked to provide an undertaking that no suchcontract would be entered intopursuant to the decision or any fundspaid to Imperialunder the decisionuntil the judicial review proceeding in thisCourt was determined.
5On 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 respondentsfile 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 2021to add a coupleofmore days. On that day the applicant filed its concise statement and noted that its letter of 28 July2021had 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.
6In the concise statement the Minister challenged the Court’s jurisdiction to review the decision, but not the Court’s jurisdiction under theJudiciary Act1903(Cth)to review the validity of theBeetaloo Instrument.
7Some five weeks after the applicant sent the letter of 28 July 2021, on 3 September2021the 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 July2021and 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.
8In 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.
9Thematter 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 therespondents’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 beenentered into on 9 September.It isapparent that the applicant first became aware of that development as the result of announcements made to the AustralianStock Exchange by Imperial.
10As a result of today’s case management hearing, I have madeorders withaviewtothis matter being heard for two days commencing on 2November 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 onthe 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.
I certify that the precedingten(10) numberedparagraphs area true copy of the Reasons for Judgment ofthe HonourableJustice Griffiths.
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