Mees v Kemp [2004] FCA 366

Mees v Kemp [2004] FCA 366

The application for review was dismissed on the basis that the Minister's statement of reasons was adequate and the application was filed almost twelve months out of time without sufficient explanation or merit to justify an extension. The Minister was not required by s 75(2) EPBC Act to take into account a speculative possibility of a future freeway link as a relevant consideration, and the prerequisites for reconsidering the decision under s 78 were not met. No reviewable 'second decision' was made.

Parties
Applicant: Paul Andrew Mees; First Respondent: David Kemp (in his capacity as Minister for the Environment and Heritage); Second Respondent: Southern and Eastern Integrated Transport Authority
Jurisdiction
Australia
Judgment Date
31 March 2004
Procedural Posture
Application for Judicial Review / Final Judgment at First Instance
Outcome
Application dismissed; objection to competency upheld in relation to 'second decision'; directions as to costs issued.
Legal Topics
Extension of Time, Relevant Considerations—ministerial Decisions, Judicial Review of Administrative Action, Interpretation of Environment Protection and Biodiversity Conservation Act 1999 (cth), Requirements for Reasons Under Administrative Decisions (judicial Review) Act 1977 (cth)
Administrative Law Environmental Law Extension of Time Relevant Considerations—ministerial Decisions Judicial Review of Administrative Action Interpretation of Environment Protection and Biodiversity Conservation Act 1999 (cth) Requirements for Reasons Under Administrative Decisions (judicial Review) Act 1977 (cth)

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Parties

Paul Andrew Mees

Applicant

David Kemp (in his capacity as Minister for the Environment and Heritage)

First Respondent

Southern and Eastern Integrated Transport Authority

Second Respondent

Procedural Posture

Application for Judicial Review / Final Judgment at First Instance

Legal Issues

  1. 1 Whether the Minister failed to take into account a relevant consideration—namely, the 'strong chance' of a future Eastern Freeway-Greensborough link—and its environmental impact, when deciding that the Mitcham-Frankston Freeway northern section was not a 'controlled action'.
  2. 2 Whether the Minister made a reviewable 'second decision' by refusing to reconsider the original decision under s 78 of the EPBC Act.
  3. 3 Whether the statement of reasons under s 13 of the ADJR Act was inadequate, thus affecting the time limit for filing an application for review.

Ratio Decidendi

The application for review was dismissed on the basis that the Minister's statement of reasons was adequate and the application was filed almost twelve months out of time without sufficient explanation or merit to justify an extension. The Minister was not required by s 75(2) EPBC Act to take into account a speculative possibility of a future freeway link as a relevant consideration, and the prerequisites for reconsidering the decision under s 78 were not met. No reviewable 'second decision' was made.

Court Disposition

Application dismissed; objection to competency upheld in relation to 'second decision'; directions as to costs issued.

Orders

  • The application for an order of review of the decision, made by the first respondent under s 75 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) on 21 March 2002, be dismissed.
  • The objection to competency, filed by the first respondent on 14 July 2003, be upheld.