Alliance to Save Hinchinbrook Inc v Cook & Ors [2005] QSC 298

State Reporting Bureau L\& Queensland Government Department of Justice and Attorney-General |*»6] Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J Application No 341 of 2005 ALLIANCE TO SAVE HINCHINBROOK INC and REVISED COPIES ISSUED State Reporting Bureau Date: 6 October, 2005 Applicant CLIVE COOK, DIRECTOR, QPWS NORTHERN REGION, First Respondent AS DELEGATE OF THE CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY and BARRY JAMES, ACTING OPERATIONS MANAGER, Second Respondent ENVIRONMENTAL OPERATIONS NORTHERN REGION AS DELEGATE OF THE CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY and PORT HINCHINBROOK SERVICES PTY LTD Third Respondent (ACN 081 055 414) and CARDWELL PROPERTIES PTY LTD Fourth Respondent (ACN 058 737 643) CAIRNS . .DATE 03/10/2005 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 4 -- HIS HONOUR: Before me there are a number of applications made to facilitate the ultimate consideration of a judicial review of decisions made by two delegates of the Environmental Protection Agency, Mr Clive Cook and Mr Barry James, respectively first and second defendants. The decisions were made on applications by the Cardwell Shire Council to permit a development to extend two breakwaters at Oyster Point by further 100 metres into the Hinchinbrook Channel within the habitat protection zone of the Great Barrier Reef Coast Marine Park. The first decision was made pursuant to section 10(1) of the Marine Parks Regulations. The second decision was made pursuant to section 3.5.15 of the Integrated Planning Act. In terms of convenience I should first consider the application by Port Hinchinbrook Services Limited and Cardwell Properties Pty Ltd, entities connected with the development at Port Hinchinbrook ("CPL") . It was principally for the benefit of these two entities that the applications were made to the Environmental Protection Agency. Each of them now seek to be joined as respondents to the application. The applicant does not oppose this step, but the first and second respondents do on the basis that their interests have not been sufficiently identified. I am satisfied that CPL is the developer of the Port Hinchinbrook project. It is the entity that must carry out and pay for the work contemplated. I am satisfied that Port 03102005 D.l T20/LVT M/T CNS2/2005 (Jones J) 1 10 20 30 40 50 2 JUDGMENT 60 -- 2 of 4 -- Hinchinbrook Services Limited is the service provider to Cardwell Properties Pty Ltd and is required to carry out the dredging of the existing channel. The ostensible purpose of the extension is to reduce the frequency and extent of the dredging and, thus, the cost and harmful effects of the operation . The interests of these entities is clear enough in the circumstances and I will order that Port Hinchinbrook Services Limited and Cardwell Properties Pty Ltd be joined as respectively third and fourth respondent to the application. The next significant application is that by the applicant which seeks a special costs order pursuant to section 49 of the Judicial Review Act: that an application is made pursuant to subsection 1(e) being an order that the applicant bear only its own costs of the proceeding, regardless of the outcome. On this issue I am required to have regard to the factors identified in subsection 2 which have been considered in argument by counsel. Mr Litster, appearing for the third and fourth respondent, argues that the application is premature. This is because as yet there is an unfulfilled request for further reasons for the decision. He argues that whilst these are not to hand, one cannot gauge whether the applicant has a reasonable basis for the review application. Also there is a complaint that material upon which the applicant relies was only recently made available. 03102005 D.l T20/LVT M/T CNS2/2005 (Jones J) 1 10 20 30 40 50 3 JUDGMENT 60 -- 3 of 4 -- 03102005 D .1 T20/LVT M/T CNS2/2005 (Jones J) Despite my forming an impression that there are considerable ■ merits for the application, I do recognise that the third and fourth respondents have the right to be heard and to put the applicant to identification of the proper grounds for its application for review. 10 It does not seem to me to affect particularly the applicant's ability to pursue its application if this question is adjourned to the next Chamber day on the 7th of November 2005. This will give an opportunity for the further Reasons to be 20 made available, for the applicant to make whatever amendments are necessary to the grounds upon which the review is sought, and for the respondents or any of them to make such response as they consider necessary to any new material. 30 I propose therefore that this application be dealt with on the 7th of November 2005. In the meantime I propose to make directions as to the exchange of further materials to facilitate both that hearing and the review generally. 40 HIS HONOUR: I will therefore make orders in terms of the draft initialled by me and placed with the papers. 50 4 JUDGMENT 60 -- 4 of 4 --