BPH - PEP11 Court Case discussion thread, page-11

Extracted from the Federal Court Bundle:-

62. The Applicant has the right to file an application to the Federal Court for judicialreview under the Administrative Decisions (Judicial Review) Act (ADJR Act)and/or section 39B of the Judiciary Act 1903. Judicial review is quite different toa merits review. Judicial review requires a court to determine whether anadministrative decision was made according to law. It does not involve a rehearingof the original matter, and the court will not consider the merits of thearguments put to the original decision maker. However, the court will considerthe lawfulness of the process by which the decision was made, includingwhether relevant matters have been taken into account and whether proceduralfairness has been given to the Applicant. The delay in decision making for thisapplication may make it more likely that the Applicant will bring such achallenge.

63. The Commonwealth has been challenged on a suspension and extensionapplication previously which took nearly one year to settle and at significantcost. On 12 July 2019, Pathfinder Energy Pty Ltd filed an application in theFederal Court of Australia for judicial review of decisions by the delegates of theCommonwealth-Western Australia Offshore Petroleum Joint Authority to refusesuspension and extension applications concerning two exploration permits (WA-487-P and WA-479-P) which had subsequently expired. This case went tomediation and was settled out of court, however, the Commonwealth wasordered by the court to remake the decisions. Pathfinder’s basis for the legalclaim was that the decision makers had applied the Guideline inflexibly as tomatters relating to commercial risks and force majeure – with the presidingJudge noting that “it is established practice that any decision maker must notapply any policy inflexibly without regard to whether the particularcircumstances may justify a departure from policy”.