FRIENDS OF AUSTRALIAN ROCK ART INC -v- WHITBY MLA [2026] WASC 145

[2026] WASC 145 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : FRIENDS OF AUSTRALIAN ROCK ART INC -v- WHITBY MLA [2026] WASC 145 CORAM : PALMER J HEARD : 20 MARCH 2026 DELIVERED : 23 APRIL 2026 FILE NO/S : CIV 1612 of 2025 BETWEEN : FRIENDS OF AUSTRALIAN ROCK ART INC Applicant AND HON REECE WHITBY MLA First Respondent MINISTER FOR ENVIRONMENT Second Respondent WOODSIDE ENERGY LTD (ABN 63 005 482 986) Other Party Catchwords: Judicial review application - Whether leave should be given to amend the judicial review application - Whether the proceedings should be transferred to the Federal Court - Whether Federal Court has jurisdiction - Whether it is in interests of justice for the proceedings to be transferred to the Federal Court - Whether discovery should be ordered -- 1 of 41 -- [2026] WASC 145 Page 2 Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Environmental Protection Act 1986 (WA) Environment Protection and Biodiversity Conservation Act 1999 (Cth) Federal Court of Australia Act 1976 (Cth) Judiciary Act 1903 (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) Jurisdiction of Courts (Cross0Vesting) Act 1987 (Cth) Rules of the Supreme Court 1971 (WA) Trade Practices Act 1974 (Cth) Result: Application to amend allowed in part Application to transfer the proceedings to the Federal Court dismissed Application for discovery granted Category: B Representation: Counsel: Applicant : Ms S Maharaj KC, Ms S Bateman & Ms V Droppert First Respondent : No appearance Second Respondent : Ms J Shaw SC & Mr J Berson Other Party : Mr K Dharmananda SC, Ms S Nadilo & Ms E M C Dyer Solicitors: Applicant : Johnson Legal Pty Ltd First Respondent : No appearance Second Respondent : State Solicitor's Office Other Party : Allens Case(s) referred to in decision(s): Abebe v Commonwealth (1999) 197 CLR 510 -- 2 of 41 -- [2026] WASC 145 Page 3 Access Group Australia Pty Ltd v Topper Hydraulic Platforms Pty Ltd [2019] WASC 265 Amalia Investments Ltd v Virgtel Global Networks NV (No 2) (2011) 198 FCR 248 Australian Solar Mesh Pty Ltd v Anderson (2000) 101 FCR 1 Bankinvest AG v Seabrook (1998) 14 NSWLR 711 BHP Billiton Ltd v Schultz (2004) 221 CLR 400 Canwest Global Communications Corporation v Australian Broadcasting Authority (1997) 24 ACSR 405 Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282 Commissioner of Taxation v Residence Riverside Pty Ltd as Trustee for the D&J Discretionary Trust and as Trustee for the D&J Investment Trust [2013] FCA 720 Hooper v Kirella (1999) 96 FCR 1 Jackson v Mylan (2012) 263 FLR 148 LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 Moorgate Tobacco Company Limited v Philip Morris Limited (1980) 145 CLR 457 Perpetual Trustees WA Ltd v The City of Joondalup [1999] WASCA 108 Primero Group Ltd v Wartsila Australia Pty Ltd [2021] WASC 44 PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1 Re Wakim; Ex parte McNally (1999) 198 CLR 511 Ruhani v Director of Police (2005) 222 CLR 489 Singh v Friedman [2013] WASC 78 Tah Land Pty Ltd v Western Australian Planning Commission [2022] WASC 219 Valceski v Valceski (2007) 70 NSWLR 36 -- 3 of 41 -- [2026] WASC 145 PALMER J Page 4 PALMER J: Introduction 1 The North West Shelf Project (the Project) extracts natural gas from the North West Shelf off the coast of Western Australia, and processes that gas at a plant located on the Burrup Peninsula in the Pilbara. The Project is operated by a joint venture of which the other party (Woodside) is a member. 2 The Project has environmental approvals from both the State and Federal governments. 3 On 14 November 2018, Woodside referred a proposal to extend the Project (the Extension Proposal) to the Environmental Protection Authority (EPA) pursuant to s 38 of the Environmental Protection Act 1986 (WA) (the State Environmental Protection Act). 4 At the time, the Project had approval to operate until 2030. The Extension Proposal sought to extend the Project's operation to 2070. 5 On 22 November 2018, Woodside also referred the Extension Proposal to the former Commonwealth Minister for the Environment and Water (the Commonwealth Minister) pursuant to s 68 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Commonwealth Environmental Protection Act) for consideration of whether it was a 'controlled action' for the purposes of the Commonwealth Environmental Protection Act. 6 On 3 May 2019, the Commonwealth Minister's delegate determined that the Extension Proposal was a controlled action and would be assessed pursuant to s 87(4) of the Commonwealth Environmental Protection Act by accredited assessment under Part IV of the State Environmental Protection Act at the level of public environmental review. 7 On 12 December 2024, the first respondent (the former Western Australian Minister for Environment (the Former Minister)) made a decision under s 45 of the State Environmental Protection Act that the Extension Proposal be implemented subject to certain conditions (the Implementation Decision). 8 On 12 June 2025, the applicant (FARA) commenced these proceedings seeking judicial review of the Implementation Decision. -- 4 of 41 -- [2026] WASC 145 PALMER J Page 5 9 The Former Minister is not an active participant in these proceedings. The current Western Australian Minister for Environment (the Minister) has been named as the second respondent to these proceedings and has taken an active role. 10 On 12 September 2025, the Commonwealth Minister published his decision to approve the Extension Proposal under the Commonwealth Environmental Protection Act subject to conditions (the Commonwealth Decision). 11 On 10 October 2025, FARA filed an application in the Federal Court (the Federal Court Proceedings), seeking a review of the Commonwealth Decision pursuant to s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act). 12 These proceedings have been listed for hearing on 2 and 3 June 2026. 13 FARA has now made three interlocutory applications in these proceedings: (a) an application filed 19 December 2025 (the Amendment Application) for leave to amend its application for judicial review under O 56 r 5 of the Rules of the Supreme Court 1971 (WA) (Rules of the Supreme Court); (b) an application filed 19 December 2025 (the Transfer Application) to transfer these proceedings to the Melbourne Registry of the Federal Court of Australia pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) (WA Cross-Vesting Act) and/or s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (Commonwealth Cross-Vesting Act); and (c) an application filed 18 February 2026 for the first and second respondents to give discovery of certain documents under O 26 r 7 of the Rules of the Supreme Court (the Discovery Application). 14 For the reasons that follow, I will allow the Amendment Application in part, dismiss the Transfer Application, and allow the Discovery Application. -- 5 of 41 -- [2026] WASC 145 PALMER J Page 6 The appeal process before the Implementation Decision was made 15 Before turning to the grounds upon which FARA seeks judicial review, it is useful to say something about the appeal process that took place before the Former Minister made the Implementation Decision. 16 As I have mentioned, Woodside referred the Extension Proposal to the EPA on 14 November 2018. 17 On 30 June 2022, the EPA assessed the Extension Proposal and it published report 1727 containing its findings and recommendations (EPA Assessment Report). 18 Appeals were lodged by various individuals and organisations, including FARA, under s 100(1)(d) of the State Environmental Protection Act against the contents of and/or the recommendations in the EPA Assessment Report. 19 On 27 September 2024, the Ministerial Appeals Committee of the Western Australian Office of the Appeals Convenor provided a report on the appeals lodged against the EPA Assessment Report to the Former Minister. 20 On 26 November 2024, the Former Minister determined the appeals pursuant to s 101 of the State Environmental Protection Act by allowing the appeals in part (the Appeal Determination). 21 As I have mentioned, the Former Minister made the Implementation Decision on 12 December 2024. Whether leave to amend should be given 22 FARA's judicial review application originally sought judicial review on three grounds. The Amendment Application seeks to add particulars to the third ground and to introduce a fourth ground. 23 FARA seeks to amend the application for judicial review in the following terms (with the proposed amendments underlined): 1. The [Former] Minister inflexibly applied the [EPA's] environmental impact assessment framework: a. in accepting the Appeal Committee's conclusion that it was not within the scope of the EPA's environmental impact assessment framework to assess the impacts of global climate change on WA from an individual proposal and then accepting the Appeal Committee's -- 6 of 41 -- [2026] WASC 145 PALMER J Page 7 finding that the EPA considered the climate science and broader policy implications for greenhouse gas (GHG) emissions reductions at a State, national and international level; b. not imposing condition limits on scope 3 emissions beyond that the Proponent be required to consider reasonable means to mitigate scope 3 emissions because, under the current framework and consistent with the EPA's current factor guideline, the EPA does not recommend condition limits on scope 3 emissions. 2. The [Former] Minister's decision was illogical or unreasonable in reasoning that 'individual proposals be made consistent with contemporary policy with respect to climate change' and then concluding that 'the Proponent be required to consider reasonable means to mitigate scope 3 emissions', because the then applicable Environmental Factor Guideline: Greenhouse Gas Emissions required the environmental impact assessment itself to consider 'whether reasonably practicable measures have been considered to reduce scope 3 emissions, such as entering into arrangements with third parties to reduce emissions'. 3. The [Former] Minister constructively failed to exercise his jurisdiction, and/or made a legally unreasonable decision, under ss 100 and 101 of the [State Environmental Protection Act] by making a decision to allow the appeal only in part without an assessment of scope 3 emissions being undertaken by the EPA. Particulars a. The [Former] Minister accepted that the emission of scope 3 emissions were significant, comprising an estimated 90% of total emissions from the Project. b. The [Former] Minister accepted that the EPA's assessment was assessed against the 2020 Environmental Framework Guideline: Greenhouse Gas Emissions. c. The 2020 Environmental Framework Guideline: Greenhouse Gas Emissions did not require the EPA to consider and address scope 3 emissions. That Guideline only stated that the EPA may request credible estimates of scope 3 emissions over the life of a proposal. d. The [Former] Minister applied contemporary policy in relation to scope 1 and scope 2 emissions and methane emissions reporting. -- 7 of 41 -- [2026] WASC 145 PALMER J Page 8 e. The [Former] Minister failed to exercise his jurisdiction, and/or acted unreasonably in his inconsistent application of contemporary policy by failing to apply contemporary policy on scope 3 emissions that required the EPA itself and not the Proponent to consider 'whether reasonably practicable measures have been considered to reduce scope 3 emissions, such as entering into arrangements with third parties to reduce emissions'. f. In the circumstances, the [Former] Minister either failed to exercise his jurisdiction, and/or acted unreasonably or illogically in failing to remit the Proposal to the EPA for further assessment of scope 3 emissions. 4. The [Former] Minister constructively failed to exercise his jurisdiction, and/or made a legally unreasonable decision, under ss 100 and 101 of the [State Environmental Protection Act], by making a decision to allow the appeal only in part and failing to require the EPA to further assess the protection of the rock art. Particulars a. The object of the [State Environmental Protection Act] is to protect the environment of the State having regard to the precautionary principle; the principle of intergenerational equity; the principles relating to improved valuation, pricing and incentive mechanisms; and the principle of waste minimisation. b. The Proposal was assessed under Part IV of the [State Environmental Protection Act] and as an accredited assessment under s 87 of the [Commonwealth Environmental Protection Act]. c. The level of assessment for the Proposal was determined as Public Environmental Review pursuant to ss 40(2)(b) and 40(4) of [State Environmental Protection Act] and the Environmental Impact Assessment (Part IV Divisions 1 and 2) Administrative Procedures 2016 and Environmental Impact Assessment (Part IV Divisions 1 and 2) Procedures Manual (Procedures Manual) (as in force at the relevant time). d. The EPA Assessment Report for the Proposal was prepared under s 44 of the [State Environmental Protection Act] for the Western Australian and Commonwealth Ministers and was the assessment -- 8 of 41 -- [2026] WASC 145 PALMER J Page 9 report for the Proposal for the purposes of the [Commonwealth Environmental Protection Act]. e. The EPA Assessment Report identifies the WA EPA's concern that the impacts to the rock art as a result of emissions would be likely to be severe and irreversible. f. The [Former] Minister, relying on the WA EPA Assessment Report, and Appeal Committee Report, failed to characterise the impacts on the rock art beyond weathering beyond natural rates. g. The [Former] Minister acted unreasonably by failing to have any, or adequate, regard to the best available science concerning impacts of industrial emissions on the rock art, including the findings of the 'Murujuga Rock Art Monitoring Program: Monitoring Studies Report 2023' and the 'Murujuga Rock Art Monitoring Program: Monitoring studies report 2024'. h. In the circumstances, the [Former] Minister either failed to exercise his jurisdiction or reasoned illogically or unreasonably in failing to remit the Proposal to the EPA for further assessment of the protection of the rock art. i. The Implementation Decision was made in reliance on the Appeal Determination. j. The Implementation Decision gives effect to the Appeal Determination. k. By reason of particulars (h), (i) and (j) of Ground 4, the Implementation Decision is invalid. l. The [Former] Minister's constructive failure to exercise his jurisdiction caused the EPA Assessment Report to be provided to the Commonwealth Minister where that Report failed to adequately assess and/or provide enough information on the relevant impacts on the rock art or the effect of conditions in addressing those impacts for the Commonwealth Minister to make a decision on whether or not to approve the Proposal subject to conditions pursuant to Part 9 of the [Commonwealth Environmental Protection Act]. 24 Woodside indicated that it did not oppose the Amendment Application given that FARA did not propose to rely on expert evidence. -- 9 of 41 -- [2026] WASC 145 PALMER J Page 10 25 The Minister adopted the same position. The Minister, however, also submitted that particulars (b), (d) and (l) of proposed new ground 4 are wholly irrelevant insofar as they relate to the Commonwealth Environmental Protection Act. 26 The power to permit an amendment to an application for judicial review is to be found in O 56 r 5(2)(h) of the Rules of the Supreme Court. That rule provides that, on an application, the court may allow an applicant for judicial review to amend the application. 27 The power to permit an amendment found in O 56 r 5(2)(h) must be exercised consistently with O 1 r 4B. O 1 r 4B provides that actions, causes, and matters in this court will, to the extent that the resources of the court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of: (a) promoting the just determination of litigation; and (b) disposing efficiently of the business of the court; and (c) maximising the efficient use of available judicial and administrative resources; and (d) facilitating the timely disposal of business. 28 It does not seem to me that particulars (b), (d) and (l) of proposed new ground 4 are proper particulars of that ground. 29 Proposed ground 4 alleged that the Former Minister constructively failed to exercise his jurisdiction, and/or made a legally unreasonable decision, under s 100 and s 101 of the State Environmental Protection Act. Why it is alleged that the Former Minister constructively failed to exercise his jurisdiction and/or made a legally unreasonable decision is identified in the particulars to that ground, other than (b), (d) and (l). 30 Particulars (b), (d) and (l) address the significance of the EPA Assessment Report for the Commonwealth approvals process. Those particulars do not reveal how, or why, the significance of the EPA Assessment Report for the Commonwealth approvals process has any relevance to whether or not the Former Minister constructively failed to exercise his jurisdiction, and/or made a legally unreasonable decision, under s 100 and s 101 of the State Environmental Protection Act. 31 I consider that there is considerable force in the Minister's complaint that particulars (b), (d) and (l) of proposed new ground 4 are -- 10 of 41 -- [2026] WASC 145 PALMER J Page 11 wholly irrelevant insofar as they relate to the Commonwealth Environmental Protection Act. 32 Permitting FARA to amend in terms that introduce irrelevant issues is inconsistent with the promotion of the just and efficient disposal of the business of this court. For this reason, I will refuse FARA leave to amend the judicial review application in terms of particulars (b), (d) and (l) of ground 4, but I will otherwise give it leave to amend in the terms that it seeks. When the Federal Court has jurisdiction and why that is relevant 33 Whether the Federal Court has jurisdiction to determine these proceedings is relevant to whether these proceedings can be transferred there. They cannot be transferred to the Federal Court if that court lacks jurisdiction. Neither the Commonwealth Cross-Vesting Act,1 nor the WA Cross-Vesting Act,2 confer jurisdiction that a court would not otherwise have. 34 Although FARA argued that the Federal Court has jurisdiction, both the Minister and Woodside disputed this. As it is not immediately obvious that the Federal Court has jurisdiction, it is useful to begin by saying something about the Federal Court's jurisdiction. 35 Section 19 of the Federal Court of Australia Act 1976 (Cth) provides that the Federal Court has such original jurisdiction as is vested in it by laws made by the Commonwealth parliament. 36 Section 39B(1A)(c) of the Judiciary Act confers jurisdiction on the Federal Court in any matter arising under any laws made by the Commonwealth parliament. 37 In Abebe v Commonwealth,3 Gleeson CJ and McHugh observed that:4 …The jurisprudence of this Court makes it clear that federal jurisdiction is limited to deciding 'matters'. Central to the notion of a 'matter' is the determination of rights, duties, liabilities and obligations in a legal proceeding. In In re Judiciary and Navigation Acts, a majority of this Court pointed out that the term 'matter' in s 76 did not mean 'a legal proceeding, but rather the subject matter for determination in a legal proceeding'. In Stack v Coast Securities (No 9) Pty Ltd, Mason, 1 Commonwealth Cross-Vesting Act, s 5(9). 2 WA Cross-Vesting Act, s 5(10). 3 Abebe v Commonwealth (1999) 197 CLR 510 (Abebe). 4 Abebe [24] - [25]. See also Ruhani v Director of Police (2005) 222 CLR 489 [56] (McHugh J) (Ruhani). -- 11 of 41 -- [2026] WASC 145 PALMER J Page 12 Brennan and Deane JJ, after referring to this passage, said 'that a court does not begin to exercise federal jurisdiction until a 'matter' within s 75 or s 76 is raised in the proceedings and that the federal jurisdiction then exercised by the court is co-extensive with the content of that 'matter'''. Similarly, in South Australia v Victoria, Griffith CJ said that '[t]he word 'matters' was in 1900 in common use as the widest term to denote controversies which might come before a Court of Justice'. The Chief Justice went on to say (51) that the matter 'must be such that it can be determined upon principles of law'. A 'matter' is therefore ordinarily concerned with 'some immediate right, duty or liability to be established by the determination of the Court'. This accords with the statement of Mason, Wilson, Brennan, Deane and Dawson JJ in Attorney-General (NSW) v Commonwealth Savings Bank 'that 'matter' is wide enough to include any subject matter for determination in legal proceedings, whether the proceedings be proceedings at first instance or proceedings by way of an appeal'. Since O'Toole v Charles David Pty Ltd, it is clear that proceedings may involve a 'matter' even when they are not determinative of the rights of the parties, provided the proceedings concern the determination of what their rights were if the law had been properly applied. Nevertheless, the determination of rights, duties and liabilities by reference to legal rules, principles or standards in curial proceedings is at the heart of the notion of a 'matter' for constitutional purposes. It follows that the Parliament is acting within the power conferred by s 77 of the Constitution whenever it authorises a federal or State court to determine, by reference to a legal rule, principle or standard, the rights, duties or liabilities of litigants which arise out of controversies that fall within any of the descriptions in pars (i)-(v) of s 75 or pars (i)-(iv) of s 76 of the Constitution. The identification of the 'matter' will in part depend upon the nature of the rights, duties and liabilities that arise under a law or state of affairs described in s 75 or s 76, but only to the extent that those rights, duties and liabilities are enforceable in the federal or State court which has jurisdiction to hear the 'matter'. (footnotes omitted) 38 In Rana v Google,5 the Full Court of the Federal Court (Allsop CJ, Besanko and White JJ) said:6 Crucial to the scope and operation of federal jurisdiction, to the question whether a proceeding is within federal jurisdiction and to the question whether a proceeding is within the jurisdiction of this Court, is the concept of a 'matter'. In Re Wakim, Gummow and Hayne JJ at [139]-[140] described a 'matter', and the process of its identification, as follows: 5 Rana v Google (2017) 254 FCR 1 (Rana v Google). 6 Rana v Google [16] - [18]. -- 12 of 41 -- [2026] WASC 145 PALMER J Page 13 [139] The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim. [140] In Fencott it was said that: 'in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.' The references to 'impression' and 'practical judgment' cannot be understood, however, as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large. What is a single controversy 'depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships'. There is but a single matter if different claims arise out of 'common transactions and facts' or 'a common substratum of facts', notwithstanding that the facts upon which the claims depend 'do not wholly coincide'. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are 'completely disparate', 'completely separate and distinct' or 'distinct and unrelated' are not part of the same matter. (Citations omitted and emphasis added) The 'matter' is the justiciable controversy between the parties arising out of the substratum of facts and claims representing, or amounting to, the dispute or controversy between or amongst the parties. Where federal and non-federal claims comprise the same justiciable controversy, a court exercising federal jurisdiction will have jurisdiction to resolve the entire matter in the exercise of its federal jurisdiction. The non-federal part of the matter is sometimes referred to as 'accrued jurisdiction' (as distinct from the associated jurisdiction provided for under s 32 of the Federal Court of Australia Act). It is better understood and expressed, however, as being part of the one matter. References to 'accrued jurisdiction' need to be treated with caution or, indeed, to be avoided: see Rizeq v Western Australia (2017) 91 ALJR 707; 344 ALR 421 at [55] per Bell, Gageler, Keane, Nettle and Gordon JJ. (It should also be noted at this no issue concerning s 79 of the Judiciary Act arises in this case.) -- 13 of 41 -- [2026] WASC 145 PALMER J Page 14 A matter will 'arise under' a law of the Parliament in a number of ways. These include cases where a cause of action is created by a Commonwealth statute; where a Commonwealth statute is relied upon as establishing a right to be vindicated; where a Commonwealth statute is the source of a defence that is asserted; where the subject matter of the controversy owes its existence to Commonwealth legislation — that is where the claim is in respect of or over a right which owes its existence to federal law; where it is necessary to decide whether a right or duty based on a Commonwealth statute exists even where that has not been pleaded by the parties, or where a federal issue is raised on the pleadings but it is unnecessary to decide: see generally R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; Felton v Mulligan (1971) 124 CLR 367 at 374, 388, 403; Moorgate Tobacco Company Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581-582; Re McJannet; Ex parte Australian Workers' Union of Employees (Qld) (No 2) (1997) 189 CLR 654 at 656- 657; CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1 at 7-8. A matter may also exist prior to the commencement of formal proceedings and be federal in character at that point: Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at [45]-[55]. There is a difference, however, between a matter 'arising under' a law of the Parliament and a matter that merely involves the interpretation of a federal law (and which will not on its own attract federal jurisdiction): see Felton at 374, 408-409, 416. 39 The Full Court in Rana v Google quoted from the judgment of Gummow and Hayne JJ7 in Re Wakim; Ex parte McNally.8 Shortly before the passage quoted, Gummow and Hayne JJ observed that the bringing of separate proceedings and the joining of different parties 'would ordinarily suggest (and perhaps suggest very strongly) that there is more than one matter', although they also said that the identification of the justiciable controversy between parties is not determined only by the considerations of there being separate proceedings and different parties in the one court.9 They said that the fact that separate proceedings had been brought and different parties joined 'will often be important facts in deciding whether there is a single justiciable controversy'.10 7 With whom Gleeson CJ and Gaudron J agreed. 8 Re Wakim; Ex parte McNally (1999) 198 CLR 511 (Re Wakim). 9 Re Wakim [137] - [138]. 10 Re Wakim [145]. See also [74] (McHugh J). -- 14 of 41 -- [2026] WASC 145 PALMER J Page 15 40 In PT Bayan Resources TBK v BCBC Singapore Pte Ltd,11 the High Court held that a 'justiciable controversy' 'sufficiently answers' the 'arising under' description 'where a claim in issue within the scope of that controversy depends for its existence on a Commonwealth law. It is not necessary that the form of relief claimed also depends on Commonwealth law'. 41 Proceedings should not be transferred to a court where it is seriously arguable that the transferee court does not have jurisdiction and the transferor court undoubtably has jurisdiction.12 Is it seriously arguable that the Federal Court lacks jurisdiction? FARA's claim that the Federal Court has jurisdiction 42 As I have mentioned, FARA maintains that the Federal Court has jurisdiction but this was disputed by both the Minister and Woodside. 43 FARA characterised the justiciable controversy between the parties as being whether Woodside has a valid authorisation for the Extension Proposal. It argued that the relevant 'rights' and 'duties' in dispute concern the statutory permission for Woodside to proceed with the Extension Proposal by virtue of its seeking and obtaining authorisation under both the Commonwealth Environmental Protection Act and the State Environmental Protection Act. 44 FARA referred to ground 3 in these proceedings in which it contends that the Former Minister acted unreasonably or constructively failed to exercise his jurisdiction in allowing the appeal from the EPA Assessment Report in part and failing to remit the issue of Scope 3 back to the EPA. 45 FARA argued that if that ground is successful, the EPA Assessment Report process is not complete. FARA contended that the EPA Assessment Report (and the EPA's functions in preparing that report) perform a dual function of informing the Western Australian and Commonwealth Ministers pursuant to the State Environmental Protection Act and the Commonwealth Environmental Protection Act. It argued that the EPA Assessment Report therefore exists and itself regulates the statutory assessment and authorisation process by reason 11 PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1 [54] (French CJ, Kiefel, Bell, Gageler & Gordon JJ), citing LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575, 581; Ruhani [74] - [75], [116]. 12 Jackson v Mylan (2012) 263 FLR 148 [28], [47] (Campbell J); Valceski v Valceski (2007) 70 NSWLR 36 [20] - [24] (Brereton J). -- 15 of 41 -- [2026] WASC 145 PALMER J Page 16 of the operation of certain provisions of the Commonwealth Environmental Protection Act. 46 FARA submitted that the same reasoning applies to the proposed new ground 4. It argued that because of the interaction between the State Environmental Protection Act and the Commonwealth Environmental Protection Act, the Implementation Decision being challenged in this proceeding has both a state and a federal dimension. It contended that because of the operation of the Commonwealth Environmental Protection Act, a challenge to the Implementation Decision is therefore within federal jurisdiction as it arises under the Commonwealth Environmental Protection Act. It was argued that these proceedings will be resolved predominantly by the application of state law in federal jurisdiction. 47 FARA argued that the Implementation Decision is the end of the 'accredited assessment process' for the Extension Proposal for the purposes of the Commonwealth Environmental Protection Act. FARA contended that the Commonwealth Minister's receipt of the Implementation Decision purportedly enlivened that minister's power to approve the Extension Proposal under s 130 and s 133(1) of the Commonwealth Environmental Protection Act. 48 FARA's primary written submissions also referred to a proposed ground 8 that it said it would pursue in the Federal Court Proceedings. Proposed ground 8 was in the following terms: 8. In the event [the Implementation Decision] is held invalid [in these proceedings] and that order is not set aside before the hearing and determination of [the Federal Court Proceedings]; or, if [these proceedings are] transferred into [the Federal] Court and [the Federal] Court finds [the Implementation Decision] invalid on the grounds pleaded in [in these proceedings], then the [Commonwealth] Minister made the [Commonwealth] Decision on the erroneous basis that the [the Implementation Decision] was valid and/or the [Commonwealth] Decision is invalid as the validity of [the Implementation Decision] is a precondition to the exercise of the [Commonwealth] Minister's powers to approve the proposed [Extension Proposal]. Particulars (a) On 3 May 2019, a delegate of the [Commonwealth] Minister decided: -- 16 of 41 -- [2026] WASC 145 PALMER J Page 17 (i) the proposed [Extension Proposal] was a controlled action and that the controlling provisions were ss 15B and 15C of the [Commonwealth Environmental Protection Act] pursuant to s 75 of the [Commonwealth Environmental Protection Act]; and (ii) The proposed [Extension Proposal] be assessed by an 'accredited assessment process' being assessment by the WA Environmental Protection Authority under the [State Environmental Protection Act] pursuant to s 87(1) of the [Commonwealth Environmental Protection Act]. (b) The [EPA Assessment Report] in relation to the [Extension Proposal] was the assessment report for the [Extension Proposal] for the purposes of ss 87(4) and 130(2)(c) of the [Commonwealth Environmental Protection Act]. (c) The end of the 'accredited assessment process' under the [Commonwealth Environmental Protection Act] for the purposes of the [Extension Proposal] occurred on or around 12 December 2024 when MS 1233 recommended that the [Extension Proposal] be implemented subject to conditions [Statement of Reasons at [32]]. (d) On or around 13 December 2024, the [Commonwealth] Minister's jurisdiction to approve the [Extension Proposal] was purportedly enlivened under ss 130 and 133(1) of the [Commonwealth Environmental Protection Act] on receipt of MS 1233 for the [Extension Proposal] [Statement of Reasons at [32]; Attachment F9 to the Decision Brief at [44]]. (e) In circumstances where MS1233 is invalid as identified in Ground 8 above, the consequence is that the Decision is invalid. 49 FARA's primary written submissions submitted that the fact that such a claim is not made in the present proceedings, and was yet to be made in the Federal Court Proceedings, did not affect the conclusion that these proceedings are in federal jurisdiction, and it referred to the -- 17 of 41 -- [2026] WASC 145 PALMER J Page 18 decisions of Moorgate Tobacco Company Limited v Philip Morris Limited,13 and Australian Solar Mesh Pty Ltd v Anderson.14 50 After FARA filed its primary written submissions but before the hearing of the Transfer Application, a directions hearing was held in the Federal Court Proceedings in which FARA indicated that it would not press its application to amend its grounds of review to raise proposed ground 8. It indicated, however, that it reserved its right to reagitate the ground if these proceedings were transferred to the Federal Court, or if this court decided that the Implementation Decision was invalid. 51 FARA's reply submissions contended that the service of ground 8 on the parties to the Federal Court Proceedings, and reference to it in correspondence with the parties to these proceedings, was sufficient to have raised a claim 'arising under' a Commonwealth law for the purposes of enlivening federal jurisdiction, and it referred to a decision of the Full Federal Court in Hooper v Kirella.15 52 FARA argued that it was artificial to suggest that the controversy in these proceedings is separate to the controversy in the Federal Court Proceedings. It submitted that the underlying rights and interests arise out of the Commonwealth Environmental Protection Act from at least 3 May 2019, when a delegate of the Commonwealth Minister decided that: (a) the Extension Proposal was a controlled action under s 75 of the Commonwealth Environmental Protection Act, and the Project required the Commonwealth Minister's approval under Part 9 of the Commonwealth Environmental Protection Act; and (b) the Extension Proposal would be assessed by an accredited assessment process (for the purposes of s 87 of the Commonwealth Environmental Protection Act) being assessment by the EPA under the State Environmental Protection Act. 53 FARA submitted that a consequence of the first decision was that Woodside required a valid Commonwealth approval under that Act to proceed. FARA argued that a consequence of the second decision was 13 Moorgate Tobacco Company Limited v Philip Morris Limited (1980) 145 CLR 457, 476 (Moorgate Tobacco). 14 Australian Solar Mesh Pty Ltd v Anderson (2000) 101 FCR 1 (Australian Solar Mesh) [12] (Burchett J) (Wilcox J & Tamberlin JJ agreeing). Applicant's Primary Submissions [36]. 15 Hooper v Kirella (1999) 96 FCR 1 [41] - [55] (Wilcox, Sackville & Katz JJ) (Hooper v Kirella). -- 18 of 41 -- [2026] WASC 145 PALMER J Page 19 that the Western Australian assessment and approval processes under the State Environmental Protection Act became a necessary and central part of the Commonwealth decision-making processes under the Commonwealth Environmental Protection Act. 54 FARA contended that there was significant interaction between the State Environmental Protection Act and the Commonwealth Environmental Protection Act for the purposes of the assessment and the approval of the Extension Proposal. 55 FARA argued that as a matter of law, as the Commonwealth Minister's (via the Commonwealth Department) receipt of the Implementation Decision recommenced the statutory timeframe, the Implementation Decision gave effect to, and notified the Commonwealth of, the end of the Western Australian assessment process under the State Environmental Protection Act (that process included the Former Minister's determination of appeals from the EPA Assessment Report under the State Environmental Protection Act). 56 FARA also argued that the Commonwealth Minister in deciding whether to attach a condition to an approval of the Extension Proposal must, and did in fact, consider any relevant conditions imposed by the Implementation Decision and it referred to the Commonwealth Minister's Statement and s 134(4)(a) of the Commonwealth Environmental Protection Act. It is seriously arguable that the Federal Court lacks jurisdiction 57 In my view, it is seriously arguable that these proceedings and the Federal Court Proceedings raise separate and distinct justiciable controversies, that are distinct matters. I have reached this conclusion for four reasons. There are two distinct proceedings with different parties 58 First, the commencement of separate proceedings and the joining of different parties suggests that there is more than one controversy or matter. 59 While it is true that FARA and Woodside are parties to both proceedings, they are not the only necessary parties to those proceedings. 60 The Minister and Former Minister are necessary parties to these proceedings. They are not, however, necessary parties to the Federal -- 19 of 41 -- [2026] WASC 145 PALMER J Page 20 Court Proceedings. Unless these proceedings are transferred to the Federal Court, they have no interest in the Federal Court Proceedings. 61 The Commonwealth Minister is a necessary party to the Federal Court Proceedings. FARA did not name the Commonwealth Minister as a party to these proceedings, however, presumably in recognition that the Commonwealth Minister had no interest in these proceedings when they were initiated. Nor has the Commonwealth Minister sought to intervene in these proceedings on the basis that he maintains that he is a proper party. FARA decided not to press ground 8 in the Federal Court Proceedings 62 Secondly, FARA's arguments relied, at least in part, upon an assertion that it intended to raise proposed ground 8 in the Federal Court Proceedings. It subsequently did not do so, however. As a consequence, the issues raised by that proposed ground will not be determined by the Federal Court. 63 FARA's primary submissions argued that the fact that ground 8 had not yet been 'pleaded' did not affect the conclusion that the proceedings in this court are within federal jurisdiction, and it referred to two cases: Moorgate Tobacco and Australian Solar Mesh. The passages relied upon refer to federal jurisdiction being attracted when a federal statute is directly asserted, or it is necessary to decide a right or matter arising under federal law, even if an issue has not been formally pleaded. 64 FARA referred to the following observations made by Stephen, Mason, Aickin and Wilson JJ in Moorgate Tobacco:16 The cases establish that federal jurisdiction is attracted if the right or duty based in a federal statute is directly asserted by the plaintiff or defendant, but not if the federal question arises only in some incidental fashion. So too federal jurisdiction is attracted if the court finds it necessary to decide whether or not a right or duty based in federal law exists, even if that matter has not been pleaded by the parties. But the converse is not true. If a federal matter is raised on the pleadings federal jurisdiction is exercised, notwithstanding that the court finds it unnecessary to decide the federal question because the case can be disposed of on other grounds. (emphasis added) 16 Moorgate Tobacco, 476. -- 20 of 41 -- [2026] WASC 145 PALMER J Page 21 65 FARA also referred to two passages of the judgment of Burchett J in Australian Solar Mesh. In the first, his Honour observed:17 In one aspect, what this means is that when a federal law is pleaded in defence of a claim that in itself lay entirely within a State jurisdiction, or even though the federal law is not pleaded, when it becomes a necessary issue in the case, a change comes over the jurisdiction the court is exercising, and the matter, though originally in State jurisdiction, turns into a matter calling for the exercise of federal jurisdiction. In Ovid's Metamorphoses, the fleeing Daphne was transformed into a laurel tree as a defence against the too eager suit of Apollo. The Australian Constitution is scarcely less dramatic than the myth: upon a defendant raising a defence under federal law, or a federal issue otherwise being raised for decision, the suit itself becomes metamorphosed into a federal matter. (emphasis added) 66 In the second, his Honour said:18 One question raised in Elders Ltd v Swinbank should be mentioned. Drummond, Sundberg and Marshall JJ expressed the view (at 308-309 [17][18]) that, although, in the absence of some explicit pleading, the identification in the course of proceedings of a matter arising under a law made by the Parliament may attract federal jurisdiction, this will be so 'only if it turns out to be necessary for the Court to determine that particular claim in order to dispose of the litigation'. With respect, I do not think it was necessary for their Honours to go so far to decide the case before them, and the proposition does appear to make or very much depend on a formal and technical distinction. It may be that, in some circumstances, the raising of an issue, though not formally pleaded, may, as a matter of substance, fall within the principle of the High Court authorities, so as to have the same effect as a pleading. As Barwick CJ pointed out in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 473, 'the issues raised by the pleadings [do not] necessarily mark out the parameters of the matter'. And '[t]he identification of the matter is very much a question of substance and not of form'. Compare the remarks of Wilcox, Sackville and Katz JJ in Hooper v Kirella Pty Ltd at 370. It may be that the transformation of an action in a State jurisdiction to a federal proceeding occurs when the federal issue comes under serious examination by the court as an issue in the proceeding, whatever the question on which the decision ultimately turns. It is difficult to see how the court could examine a federal issue, as an issue in the proceeding, in the exercise of any but federal jurisdiction, and once that jurisdiction attaches, according to the authorities, it embraces the whole matter, as Barwick CJ made 17 Australian Solar Mesh [12]. 18 Australian Solar Mesh [16]. -- 21 of 41 -- [2026] WASC 145 PALMER J Page 22 clear in the passage which is cited in Stack v Coast Securities (No 9) Pty Ltd at 291 from his judgment in Felton v Mulligan at 373. I do not read the statement in Moorgate Tobacco Company Ltd v Philip Morris Ltd at 476, which is quoted earlier in these reasons, as a restrictive statement confining the boundaries of a matter capable of arising under a federal law, but as an inclusive statement of some matters that do so arise. (emphasis added) 67 By the time that FARA prepared its reply submissions, it had decided not to press ground 8 in the Federal Court Proceedings. Its reply submissions argued that the fact that it had suggested it might raise the ground was sufficient to attract federal jurisdiction, and it referred to Hooper v Kirella, where the Full Federal Court observed: 19 Of course, if a controversy is the subject of existing proceedings claiming substantive relief the scope of the controversy (or 'matter') is likely to depend, in part, on what the parties allege in the pleadings and how they have conducted the litigation: Abebe at 561 [139]; 38-39 [139], 562-563 [145]; 40 [145], per Gummow and Hayne 11. But that does not mean that unless a party has instituted proceedings claiming substantive relief there can be no matter in respect of which jurisdiction can be conferred on the Federal Court. It is the justiciable controversy which constitutes the matter. That controversy may or may not be co-extensive with legal proceedings already instituted. (emphasis added) 68 Cases like Hooper v Kirella emphasise the important role that the pleadings, and how the parties have decided to conduct the litigation, play in the identification of the scope of the controversy or matter. There are no pleadings in either these proceedings or the Federal Court Proceedings, as both proceedings involve applications for judicial review. The grounds of review in both proceedings, however, perform a similar function to pleadings as they identify the matters in issue in the proceedings. It is therefore instructive to consider the grounds upon which review has been sought in both proceedings. 69 The grounds of review in these proceedings do not raise any right or matter arising under federal law for determination. Nor will it be necessary for this court to determine any such matter as part of these proceedings. 19 Hooper v Kirella [53]. -- 22 of 41 -- [2026] WASC 145 PALMER J Page 23 70 In these proceedings, FARA seeks the judicial review of a decision made by the Former Minister under s 45 of the State Environmental Protection Act. The determination of the proceedings will involve the application of Western Australian legislation and the common law. The determination of the issues that arise do not require the application or the interpretation of the Commonwealth Environmental Protection Act. 71 To the extent that the arguments made by FARA relied upon particulars (b), (d) and (l) of ground 4, I have refused FARA leave to amend in those terms. 72 FARA's reply submissions argued that the irrelevancy of particulars (b), (d) and (l) of ground 4 did not deprive the characterisation of its claim in that ground as asserting a matter arising under the Commonwealth Environmental Protection Act for the purposes of enlivening federal jurisdiction. FARA submitted that it is well-established that it is sufficient for a matter to arise under a Commonwealth law if the federal matter is raised on the pleadings, notwithstanding that the court finds it unnecessary to decide the federal question because the case can be disposed of on other grounds. It contended that that conclusion holds even if the federal claim is struck out or not pressed. 73 The allegations made in particulars (b), (d) and (l) of proposed ground 4 have not been raised in these proceedings. Under O 56 r 5(2)(h) of the Rules of the Supreme Court, FARA required leave to amend the judicial review application to introduce those allegations. That leave has been refused. This is not a case in which the pleading has been struck out (with the underlying controversy remaining unresolved) or a claim pleaded but not ultimately pressed. Rather, the consequence of the refusal of leave is that FARA has been precluded from raising the matters in particulars (b), (d) and (l) in these proceedings at all. These circumstances are quite different to the circumstances discussed in the cases to which FARA refers. 74 Nor do I consider it pertinent that FARA sought to introduce the allegations made in particulars (b), (d) and (l). Those allegations were irrelevant to the matters the subject of ground 4. That is why leave to amend was refused. -- 23 of 41 -- [2026] WASC 145 PALMER J Page 24 75 None of the grounds upon which judicial review is sought in these proceedings, including ground 4 (in the terms for which leave has been given) mention the Commonwealth Environmental Protection Act. 76 The Federal Court Proceedings seek the judicial review of the Commonwealth Decision pursuant to the ADJR Act and the Judiciary Act. The determination of those proceedings requires consideration of the requirements of the Commonwealth Environmental Protection Act and Commonwealth law. 77 The only ground in the Federal Court Proceedings that mentioned the State Environmental Protection Act was proposed ground 8. That ground is not presently before the Federal Court because of FARA's decision not to press its amendment application to introduce that ground. Like the proposed particulars (b), (d) and (l) to ground 4 in these proceedings, the matters the subject of the proposed ground 8 have never proceeded beyond the proposed amendment stage and have never been before the Federal Court. 78 The significance of the fact that ground 8 was asserted at an earlier point must be assessed in light of the fact that FARA subsequently decided not to press its application to introduce that ground before the Federal Court. 79 It may be doubted that much weight can be attached to an assertion that has not been pressed in the present circumstances. As matters presently stand, the matters the subject of proposed ground 8 will not arise for determination by the Federal Court in the Federal Court Proceedings. This result is the consequence of decisions that FARA has made about how to conduct these proceedings and the Federal Court Proceedings. 80 In my view, FARA's argument that it is artificial to suggest that there are two distinct controversies must be assessed in light of the decisions that FARA has made about how to conduct both proceedings. This includes its decision not to press ground 8 but extends to its conduct of the proceedings more generally. 81 Nor does it seem to me that reference to Hooper v Kirella assists FARA much. That case involved an application for preliminary discovery (known as pre-action discovery in this court) following claims for relief under the Trade Practices Act 1974 (Cth) being made in correspondence. No proceedings had been instituted which is why preliminary discovery was being sought. -- 24 of 41 -- [2026] WASC 145 PALMER J Page 25 82 This is not a case in which proceedings are yet to be instituted. FARA has instituted two sets of proceedings in two different jurisdictions, it suggested that it would raise ground 8 and then decided to not do so. In my view, the present circumstances are far removed from those considered in Hooper v Kirella. 83 At the hearing before me, senior counsel for FARA submitted that ground 8 was not pressed in the Federal Court because of concerns expressed by Button J about the ground being hypothetical. 84 As ground 8 was drafted, it only sought to impugn the Commonwealth Decision, if it had first been determined that the Implementation Decision was invalid (by this court on the basis alleged in these proceedings, or by the Federal Court if these proceedings were transferred). It is therefore hypothetical in the sense that the ground would not arise unless and until the Implementation Decision is determined to be invalid. If the Implementation Decision is determined to be valid, the ground would never arise. 85 It does not seem to me that reference to the hypothetical nature of ground 8 assists FARA much. If the ground is hypothetical, then it might be thought that the justiciable controversy the subject of the ground has not yet arisen (because the Implementation Decision has not been determined to be invalid). The factual overlap between the two proceedings is limited 86 Thirdly, it might be doubted that there is a sufficient overlap between the factual substratum of the two sets of proceedings to constitute a common substratum. 87 It seems to me that the relevant factual substratum in each proceeding is the substratum of facts that is relevant to the determination of the particular issues that arise for determination in that proceeding. 88 As the issues to be determined in these proceedings are separate and distinct from the issues to be determined in the Federal Court Proceedings, they lack significant overlap. There is similarly little overlap between the facts relevant to the determination of the issues in each proceeding. 89 Ground 8 has not been pressed. But even if it had, it would not have caused the two proceedings to overlap. This is because the ground -- 25 of 41 -- [2026] WASC 145 PALMER J Page 26 itself does not seek to challenge the alleged validity of the Implementation Decision. Instead, it was drafted in a manner that assumes the invalidity of the decision has already been established by prior judicial determination and takes that determination as its starting point. 90 Ground 8 therefore did not require separate consideration of the validity of the Implementation Decision as part of that ground. The only grounds upon which the validity of that decision was challenged remain the grounds alleged in these proceedings. 91 It is also relevant to observe that ground 8 was only one (proposed) ground in the Federal Court Proceedings. There was no suggestion that any of the other grounds overlapped with these proceedings. The two Acts have different schemes and resulted in two different decisions 92 Fourthly, FARA's characterisation of the justiciable controversy as being whether Woodside has a valid authorisation for the Extension Proposal glosses over relevant differences between the two different legislative regimes. 93 Although there may be some interaction between the Commonwealth Environmental Protection Act and the State Environmental Protection Act, the two Acts provide for separate and distinct legislative regimes. 94 The State Environmental Protection Act and the Commonwealth Environmental Protection Act were passed by different parliaments, exercising different constitutional power. They create two different legislative regimes, requiring different assessment processes, culminating in distinct decisions made by different decision makers, exercising different decision making power. 95 The distinctness of the two legislative regimes is illustrated by the grounds of review. The grounds of review in these proceedings are limited to seeking the review of a decision made under the State Environmental Protection Act. The grounds of review in the Federal Court Proceedings seek review of decisions made under the Commonwealth Environmental Protection Act. The grounds do not overlap. -- 26 of 41 -- [2026] WASC 145 PALMER J Page 27 Conclusion 96 My conclusion that it is seriously arguable that the Federal Court lacks jurisdiction may be sufficient alone to dispose of the Transfer Application. Out of deference to the submissions that have been made and in case I am wrong, however, I will still consider the arguments that FARA advanced as to why these proceedings should be transferred to the Federal Court. Before doing so, it is necessary to say something about when proceedings will be transferred under the cross-vesting acts. When proceedings will be transferred under the cross-vesting acts 97 Section 5(1) of the Commonwealth Cross-Vesting Act provides: (1) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court); and (b) it appears to the first court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) and it is more appropriate that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia (Division 1); (ii) having regard to: (A) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Federal Circuit and Family Court of Australia (Division 1), the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Federal Court or the -- 27 of 41 -- [2026] WASC 145 PALMER J Page 28 Federal Circuit and Family Court of Australia (Division 1); (B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross-vesting of jurisdiction; and (C) the interests of justice; it is more appropriate that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia (Division 1), as the case may be; or (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia (Division 1); the first court shall transfer the relevant proceeding to the Federal Court or the Federal Circuit and Family Court of Australia (Division 1), as the case may be. (emphasis added) 98 Section 5(1) of the WA Cross-Vesting Act is drafted in more restrictive terms than s 5(1) of the Commonwealth Cross-Vesting Act. It contains a provision similar to s 5(1)(b)(ii) of the Commonwealth Cross-Vesting Act but does not contain an equivalent of either s 5(1)(b)(i) or s 5(1)(b)(iii) of the Commonwealth Cross-Vesting Act. Section 5(1) of the WA Cross-Vesting Act provides: (1) Where — (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court; and (b) it appears to the Supreme Court that, having regard to — -- 28 of 41 -- [2026] WASC 145 PALMER J Page 29 (i) whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court; (ii) the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and (iii) the interests of justice, it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be, the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be. (emphasis added) 99 The approach that should be adopted to cross-vesting applications was explained by Street CJ in Bankinvest AG v Seabrook20 as follows: As a very broad generality it can be said that the ordinary day to day administration of the cross-vesting scheme in its operation on a given proceeding is placed in the hands of whatever court it may be in which they are commenced. Ordinarily it could be expected that a single judge of that court would decide whether it is in the interests of justice to transfer the proceedings to one of the other nine courts. If such an order be made then in practical terms it effects what might be likened to an administrative re-direction of the proceedings to the other court selected. In the hands of that other court the proceeding will continue to attract the Australiawide jurisdiction and law which would have been 20 Bankinvest AG v Seabrook (1998) 14 NSWLR 711, 714. -- 29 of 41 -- [2026] WASC 145 PALMER J Page 30 exercisable and applicable by the court from which they were transferred. Viewed from this standpoint it can be seen to be highly desirable that the judicial administration of the day to day working of the cross- vesting scheme is not encumbered by an encrustation of judge-made pronouncements of principles to be applied when considering a transfer order. It calls for what I might describe as a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute. 100 If the court is of the opinion that s 5(1) of the Commonwealth Cross-Vesting Act or the WA Cross-Vesting Act is satisfied, as mandated by the statutory language, it must transfer the proceeding. There is no question of judicial discretion.21 101 Each case turns on its own facts when determining the more appropriate court having regard to the interests of justice.22 102 The court must commence from a position of complete neutrality and it is therefore inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof.23 103 The phrase 'the interests of justice' in s 5(1) captures not just the interests of the parties but may also capture interests wider than those of either party.24 104 Connecting factors are relevant to the court's assessment, and an important consideration is which forum can provide more effectively for the complete resolution of the matters in issue between the parties.25 105 In Commissioner of Taxation v Residence Riverside Pty Ltd as Trustee for the D&J Discretionary Trust and as Trustee for the D&J Investment Trust,26 McKerracher J said that a proceeding is related to another proceeding 'where a substantial and common question arises in 21 Access Group Australia Pty Ltd v Topper Hydraulic Platforms Pty Ltd [2019] WASC 265 [24] (Access Group), citing BHP Billiton Ltd v Schultz (2004) 221 CLR 400 [14] (Gleeson CJ, McHugh & Heydon JJ), [62] (Gummow J), [222] (Callinan J). 22 Access Group [23] - [26]. 23 Primero Group Ltd v Wartsila Australia Pty Ltd [2021] WASC 44 [72] (Kenneth Martin J). 24 Access Group [25]. 25 Access Group [26]. 26 Commissioner of Taxation v Residence Riverside Pty Ltd as Trustee for the D&J Discretionary Trust and as Trustee for the D&J Investment Trust [2013] FCA 720 [13] (Riverside), quoting Amalia Investments Ltd v Virgtel Global Networks NV (No 2) (2011) 198 FCR 248 [41] (Greenwood J). -- 30 of 41 -- [2026] WASC 145 PALMER J Page 31 both proceeding or where the … facts and circumstances in the two proceedings … appear to be intertwined'. 106 In the same case, McKerracher J also said that the 'value judgment or decision about whether it is in the interests of justice for the proceeding to be dealt with in another court will be readily instinctive' taking into account a variety of factors including: (a) the stage of the proceedings in the respective courts; (b) the commonality or diversity of the parties; (c) the nature of the proceedings; (d) the commonality or diversity of the issues; (e) the risk of conflicting findings of fact or conflicting orders; (f) a cost benefit analysis; (g) the potential unnecessary drain on judicial and other public and private resources; and (h) whether there is any particular judicial expertise residing in one court or the other.27 Whether these proceedings should be transferred to the Federal Court Why FARA contended the proceedings should be transferred 107 FARA submitted that the current timetabling orders are broadly similar in both these proceedings and the Federal Court Proceedings. It argued that it filed the Transfer Application expeditiously, and that if these proceedings were transferred, they would be heard and determined on a similar timetable in the Federal Court. 108 FARA argued that it and Woodside are parties to both proceedings. It submitted that Woodside is a well resourced and sophisticated litigant and the other parties are emanations of the State of Western Australia. 109 FARA contended that as both proceedings involve judicial review applications, geographic 'connecting factors' to the forum should be attributed minimal weight. 27 Riverside [17]. -- 31 of 41 -- [2026] WASC 145 PALMER J Page 32 110 FARA contended that a transfer would result in one appellate pathway, thereby reducing the burden on the judiciary and the public and private cost. 111 FARA's submissions also emphasised the Federal Court's particular expertise in matters arising under the ADJR Act. It contended that the Federal Court is the more natural forum for such matters. The Federal Court is not the more appropriate forum and the interests of justice do not favour transfer 112 The submissions made focused attention on whether the Federal Court is the more appropriate forum and the interests of justice favour transfer. For the following seven reasons, I am not satisfied that the Federal Court would be a more appropriate forum and the interests of justice favour transfer. 113 First, in my view the interests of justice favour the prompt hearing of the matters the subject of these proceedings. 114 These proceedings were commenced earlier than the Federal Court Proceedings and are likely to be heard before those proceedings if they remain in this court. 115 As matters presently stand, these proceedings are listed for hearing in early June, while the Federal Court Proceedings are listed for hearing between 21 and 27 July 2026. There is a risk that if these proceedings are transferred to the Federal Court, the hearing of the matters the subject of these proceedings (and perhaps the Federal Court Proceedings) may be delayed until after 21 July 2026. 116 Secondly, the Supreme Court of Western Australia is the forum to which these proceedings have the most real and substantial connection. 117 The Implementation Decision involves a project located in this state and a decision made under the law of Western Australia. The natural forum for a judicial review of such a decision is this court. 118 The Minister submitted that the supervisory jurisdiction of the Supreme Court remains the mechanism for the determination and the enforcement of the limits on the exercise of state executive power. It was argued that this court should not be satisfied that it is appropriate to transfer proceedings commenced in this court's constitutionally -- 32 of 41 -- [2026] WASC 145 PALMER J Page 33 protected supervisory jurisdiction except in very clear, and perhaps exceptional, cases. In my view, there is force to this submission. 119 Further, these proceedings seem to have little connection to the Melbourne registry of the Federal Court to which FARA seeks that these proceedings be transferred. The only connection to Victoria would appear to be the fact that three of FARA's four counsel are based in that state. FARA itself is registered in Western Australia. Woodside's solicitors and barristers are based in Western Australia. So too are the Minister's. 120 While it might be accepted that Woodside and the government of Western Australia are well resourced litigants, it does not follow that the additional expense and inconvenience that might be caused to them is irrelevant to the consideration of what is in the interests of justice. Nor does it alter the fact that these proceedings have no connection to Victoria other than the fact that some of FARA's counsel are located there. 121 Thirdly, the transfer of these proceedings to the Federal Court would result in both the Minister and the Commonwealth Minister becoming parties to a larger and more complicated combined proceeding, despite each only having an interest in the individual set of proceedings to which they are presently parties. There is a risk that such a larger and more complicated proceeding will take longer to resolve than the two sets of proceedings currently on foot and that the transfer would disrupt the Federal Court Proceedings. 122 Fourthly, as there is no application to transfer the Federal Court Proceedings to this court, the Federal Court's particular expertise in ADJR Act proceedings is not a weighty consideration. 123 Fifthly, there is no suggestion that there is a risk of inconsistent findings. 124 Sixthly, as I have already explained the two proceedings do not have common issues and do not overlap. 125 Seventhly, while it may be accepted that maintaining the two sets of proceedings means that there might be two different appeals, the benefits to be obtained through a single appellant pathway do not outweigh the considerations I have already identified. -- 33 of 41 -- [2026] WASC 145 PALMER J Page 34 Conclusion on transfer: these proceedings should not be transferred 126 I consider therefore that the Transfer Application should be dismissed. It is seriously arguable that the Federal Court lacks jurisdiction. Further, even if I am wrong and the Federal Court has jurisdiction, in my view the Federal Court is not the more appropriate forum and the interests of justice do not favour the transfer. When discovery will be ordered in judicial review proceedings 127 Before turning to consider the merit of FARA's Discovery Application, it is necessary to say something about the circumstances in which discovery will be ordered in judicial review proceedings. 128 Although there is no automatic entitlement to discovery in judicial review proceedings,28 O 56 r 5(2)(f) of the Rules of the Supreme Court provides that on a judicial review application, a court my give an applicant for judicial review leave to require a person served with a judicial review application to give discovery under O 26 (which order provides for discovery). 129 In Perpetual Trustees WA Ltd v The City of Joondalup,29 Owen J (as his Honour then was) observed that it would be unusual for discovery to be ordered in proceedings for a prerogative writ because applications for such relief are concerned with the legality of the decision-making and the conduct of the decision-makers, rather than the inherent merits of the decisions under review.30 130 Discovery will be ordered in judicial review proceedings if it is necessary for the proper administration of justice and for disposing fairly of the grounds of review, however. The relevant principles were summarised by Tottle J in Tah Land Pty Ltd v Western Australian Planning Commission31 as follows: Discovery will be ordered in judicial review proceedings if it is necessary for the proper administration of justice and for disposing fairly of the grounds of review. In Cazaly Iron Pty Ltd v Bowler, Buss JA (as his Honour then was) summarised the relevant case law in relation to applications for discovery within judicial review proceedings and quoted extensively and with approval from the judgment of Hill J in Canwest Global Communications Corporation v Australian 28 See O 56 r 6 of the Rules of the Supreme Court. 29 Perpetual Trustees WA Ltd v The City of Joondalup [1999] WASCA 108. 30 Tah Land Pty Ltd v Western Australian Planning Commission [2022] WASC 219 (Tah Land). 31 Tah Land, [15] - [16]. -- 34 of 41 -- [2026] WASC 145 PALMER J Page 35 Broadcasting Authority. Referring to Hill J's judgment in Canwest, Buss JA said: After referring to and discussing the decision of a Full Court of the Federal Court in WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175, his Honour said, at 412: 'The power of the court to order discovery in judicial review cases, particularly those brought under the ADJR Act, was considered by a Full Court of this court, differently constituted, in ASC v Somerville, supra. In that case the court (comprising Black CJ, Ryan and Olney JJ) referred to WA Pines and, inter alia, the judgment of Beaumont J in Re FCT; Ex parte Swiss Aluminium Australia Ltd (1987) 72 ALR 247 and concluded that there was no justification for the view that discovery in judicial review proceedings should be treated otherwise than according to the ordinary principles applicable in civil proceedings. Their Honours recognised that, having regard to s 13 of the ADJR Act, the occasion for making an order for discovery will not necessarily arise where the court has all the material necessary to exercise its jurisdiction. One of the arguments put to the court in Somerville was that it was incumbent upon an applicant for discovery to establish, usually by way of evidence, a basis upon which the court should conclude that there was an issue to be tried, proof of which would be aided by discovery. This argument was rejected. Certainly there is no such requirement in the general law where discovery is sought in ordinary civil cases.' … His Honour then examined, at 414 - 415, the so-called exception encompassed by the words 'fishing expedition': … [W]here the manner in which the decision-maker has acted is at issue and the issue is required to be determined by reference to materials before the decision-maker, supervisory review can not be exercised without regard to the relevant material. It may support the applicant. It may support the respondent. Two observations made by Hill J in Canwest in the extract of the judgment quoted by Buss JA in Cazaly Iron are of particular significance: -- 35 of 41 -- [2026] WASC 145 PALMER J Page 36 (a) there is no principle that an applicant for discovery must establish by way of evidence a basis upon which the court should conclude that there was an issue to be tried, proof of which would be aided by discovery; and (b) where the manner in which the decision-maker has acted is in issue and the issue is required to be determined by reference to the materials before the decision-maker, the supervisory review cannot be exercised without regard to the relevant material. (footnotes omitted) 131 The general principles governing discovery continue to apply and be relevant.32 Those principles were summarised by Allanson J in Singh v Friedman33 as follows: 1. A party does not have a strict entitlement to an order for discovery. 2. The power to order discovery is discretionary. 3. The discretion is to be exercised having regard to the timely and cost effective disposal of litigation. 4. On the other hand, discovery has been described as promoting the ascertainment of truth in litigation and as an essential part of the proper administration of justice. 5. Subject to the rules of privilege, there is a 'public interest in having available all evidence relevant to the issues in litigation'. 6. The ultimate test is whether the discovery is necessary for fairly disposing of the proceedings. 7. Relevance is not the only factor the court must consider in the exercise of the discretion to order discovery. But whether a document relates to a matter in question in the proceedings remains the descriptive criterion in O 26 of what documents should be discovered. The two categories of discovery sought by FARA 132 FARA sought discovery of two categories of documents that were before the Former Minister: 32 Tah Land [13] - [14]. 33 Singh v Friedman [2013] WASC 78 [3] - [4]. -- 36 of 41 -- [2026] WASC 145 PALMER J Page 37 (a) all material that was before the Former Minister at the time the Former Minister made the Appeal Determination on 26 November 2024, or which was otherwise considered by the Former Minister in making the Appeal Determination (Category 1); and (b) all material that was before the Former Minister at the time the Former Minister made the Implementation Decision on 12 December 2024, or which was otherwise considered by the Former Minister in making the Implementation Decision. (Category 2). Why FARA says discovery should be given 133 FARA submitted that the documents before or otherwise considered by the Former Minister in making the Appeal Determination and Implementation Decision are relevant to the judicial review application. 134 FARA argued that there can be no bifurcation or separation of the Appeal Determination and the Implementation Decision for the purposes of determining the Discovery Application. It referred to paragraphs 18 to 21 of its Further and Better Particulars dated 31 October 2025 and submitted that: (a) the judicial review application challenges the Implementation Decision on the bases that it was made in reliance on and/or gives effect to the Appeal Determination; and (b) both the Appeal Determination and the Implementation Decision were infected by the same jurisdictional errors. 135 FARA also argued that the documents sought were relevant to grounds 3 and 4. 136 FARA contends that ground 3 alleges that the Former Minister constructively failed to exercise his jurisdiction and/or made a legally unreasonable decision by allowing the appeal from the EPA Assessment Report, only in part, without an assessment of Scope 3 emissions being undertaken by the EPA. It submitted that the issue for determination in respect of that ground requires the Court to determine whether the Former Minister's decision was legally unreasonable. 137 FARA submitted that the material in Category 1 is necessary for the court to determine whether the Former Minister acted unreasonably -- 37 of 41 -- [2026] WASC 145 PALMER J Page 38 or outside his jurisdiction in the manner alleged and the material in Category 2 is necessary for the court to determine whether the Implementation Determination was so infected by that alleged error. It argued that it is not satisfactory that the decision-maker is the arbiter of what is or is not relevant material. 138 FARA argued that the material in Categories 1 and 2 is also necessary for the just disposition of ground 4, in circumstances where this ground also impugns the conduct of the Former Minister and the legality of the Implementation Decision. 139 FARA submitted that in respect of the Category 2 documents, the need for discovery of those documents is compounded by the absence of written reasons by the Former Minister for the Implementation Decision. Why the Minister resists discovery 140 The Minister opposed the Discovery Application on the basis that discovery of the documents sought was not necessary for disposing fairly of the grounds of judicial review. 141 The Minister disputed that there is a 'general rule' that documents that were before a decision maker when he or she made a decision were relevant. 142 The Minister argued that the unreasonableness alleged in ground 3 and proposed new ground 4 is not at large and referred to the terms of the grounds. 143 In relation to Category 1, the Minister referred to and relied upon and affidavit that his solicitors had filed. He argued that that affidavit disclosed the package of relevant materials provided by the Office of the Appeals Convenor to the Former Minister for the purposes of making the Appeal Determination had been disclosed and was in evidence before the court. The Minister acknowledged that some materials provided were not provided but it was argued that those were not relevant, or were protected by legal professional privilege. 144 The Minister also submitted that his solicitors had voluntarily provided some further documents and clarifications that were set out in affidavit evidence before the court. 145 The Minister argued that Category 1 was broad and should be refused in the absence of it identifying the documents, or types of -- 38 of 41 -- [2026] WASC 145 PALMER J Page 39 documents, it believes are relevant to its judicial review application that are not already before the court or within its possession. 146 The Minister contended that in terms of proposed ground 4, given the particularised unreasonableness is a failure to have regard (or adequate regard) to the best available science, it cannot be said that FARA's ground of review would be aided by discovery. It was submitted that the application for discovery is unnecessary and premature in circumstances where the Minister has indicated he is willing to put on affidavit evidence addressing the two studies cited in the particulars to ground 4. 147 The Minister argued that grounds 1 and 2 will not be assisted by discovery. It was argued that the documents relevant to the determination of these grounds are the applicable policy documents and any reasons provided by the Minister in the Appeal Determination and these documents are already before the Court. 148 The Minister submitted that the documents sought in Category 2 are not relevant to any of the grounds of review in FARA's judicial review application. 149 It was submitted that the resolution of this ground was simply a matter of statutory construction that did not require discovery. 150 It was also contended that there was insufficient time to provide discovery in the timetable. Conclusion on discovery: Discovery will be ordered 151 I consider that discovery should be ordered. 152 As I have already noted, in Cazaly Iron,34 Buss JA seemed to indorse the observation made by Hill J in Canwest,35 that where the manner in which the decision-maker has acted is in issue and the issue is required to be determined by reference to the materials before the decision-maker, the supervisory review cannot be exercised without regard to the relevant material. Justice Tottle followed that approach in Tah Land Pty Ltd. 34 Cazaly Iron Pty Ltd v Bowler [2006] WASCA 282 [90] (Cazaly Iron). 35 Canwest Global Communications Corporation v Australian Broadcasting Authority (1997) 24 ACSR 405, 415 (Canwest). -- 39 of 41 -- [2026] WASC 145 PALMER J Page 40 153 FARA's grounds of review put in issue the manner in which the Former Minister acted when he made the Appeal Determination and the Implementation Decision. 154 It is true, as the Minister submits, that the grounds of review assert unreasonableness on a confined basis, identified in the grounds themselves. 155 Although the Minister did not object to the discovery sought on the basis of fishing, the submissions made about irrelevancy invited a conclusion that FARA was fishing. 156 The question of the relevance of fishing was also considered in Canwest. In Cazaly Iron, Buss JA also seemed to indorse the observation made by Hill J in Canwest, that there is no principle that an applicant for discovery must establish by way of evidence a basis upon which the court should conclude that there was an issue to be tried, proof of which would be aided by discovery. Again, Tottle J endorsed this approach in Tah Land Pty Ltd. 157 In my view, in this case, it is in the interests of justice that the judicial review be conducted on the basis of the material before the Former Minister. 158 While I acknowledged that giving discovery might raise timetabling issues, I anticipate that the parties will endeavour to minimise any disruption. I am concerned that deferring making any decision about whether discovery should be ordered, risks making any timetabling issues worse. 159 I note that there is some suggestion that some documents may be subject to legal professional privilege. Discovery will be ordered under O 26 of the Rules of the Supreme Court, which accommodates the making and determination of any claim for such privilege (if necessary). Conclusion 160 For these reasons, I will allow the Amendment Application in part, dismiss the Transfer Application and allow the Discovery Application. 161 I will hear from the parties on the question of costs and the appropriate orders to give effect to my reasons. -- 40 of 41 -- [2026] WASC 145 PALMER J Page 41 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CN Associate to the Honourable Justice Palmer 23 APRIL 2026 -- 41 of 41 --