Rallen Australia Pty Ltd v Sweetpea Petroleum Pty Ltd

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Barr J
• Judgment Date: 20 April 2023
• Neutral Citation: [2023] NTSC 36
• Year: 2023
• Docket Number: FILE NO: 2022-00344-SC

[2023] NTSC 36

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

JUDGMENT OF:

Barr J

FILE NO: 2022-00344-SC

In the Matter of an application for leave to appeal, pursuant to s 141 Northern Territory Civil and Administrative Tribunal Act 2014

Between:

Rallen Australia Pty Ltd

Applicant

and

Sweetpea Petroleum Pty Ltd

Respondent

REPRESENTATION:

Counsel:

Applicant: N Hutley SC, R White

Respondent: G Rich SC, H Baddeley

Wilson v Lowery (1993) 4 NTLR 79; Development Consent Authority v Phelps [2010] NTCA 3, 27 NTLR 174, followed

Lee v MacMahon Contractors Pty Ltd [2018] NTCA 7, 335 FLR 350, referred to

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Coco v The Queen (1993–1994) 179 CLR 427; CCM Holdings Trust Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1072, 97 ATR 509; Great Northern Railway Co v The Lurgan Town Cmrs [1897] 2 IR 340; Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292; Wainohu v NSW [2011] HCA 11, 243 CLR 181; NSW Land and Housing Corp v Orr [2019] NSWCA 231, 100 NSWLR 578; Metwally v University of Wollongong (1985) 60 ALR 68, referred to.

Martin and Others v Hume Coal Pty Ltd [2016] NSWLEC 51; 215 LGERA 289, distinguished.

Northern Territory Civil and Administrative Tribunal Act 2014 s 5, s 45, s 46(1), s 141

Petroleum Act 1984 (NT) s 3(1), s 3(2), s 28, s 29, s 58(j), s 81(1), s 82A, s 111(1)(a)

Petroleum Regulations 2020 (NT) r 12, r 13, r 14, r 17, r 26, r 29, r 57(2), r 57(3), Schedule 2

MINING AND PETROLEUM — Exploration permit — Pastoral property — Regulations required Tribunal to determine provisions of access agreement — Petroleum Act 1984 (NT) s 58(j) — Statutory condition of exploration permit that permittee conduct operations and activities so as not to interfere with the lawful rights or activities of any person — Tribunal determined that s 58(j) did not create jurisdictional impediment to determination by Tribunal of access agreement — Held on appeal that ‘lawful rights’ means rights as affected by grant of exploration permit and approval of access agreement — Tribunal did not err in law

MINING AND PETROLEUM — Exploration permit — Pastoral property — Certain operations prohibited within 200 m of any “artificial accumulation of water” — Land holder argued before Tribunal that water was artificially accumulated in all of its water infrastructure, including in-ground pipes — Tribunal held that water in tanks and troughs was an “artificial accumulation of water”, but not in pipes — Pipes were the means of distribution — Appellant argued that Tribunal wrongly adopted a reductionist approach and should have assessed entire water infrastructure to be an “artificial accumulation of water” — Held no error of law — Not established that in-ground pipes on their own or as components of water infrastructure necessarily came within description of an “artificial accumulation of water”.

NORTHERN TERRITORY CIVIL AND ADMINISTRATIVE TRIBUNAL — Application for leave to appeal to Supreme Court — Application for leave to appeal and appeal heard together — Appeal confined to questions of law — Error of law must be sufficient to vitiate the Tribunals decision — real possibility that error of law could have affected the Tribunal's decision — Appellant failed to establish vitiating errors of law

REASONS FOR DECISION

(Delivered 20 April 2023)

1 The applicant (“Rallen”) seeks leave to appeal against the decision of the Northern Territory Civil and Administrative Tribunal (“the Tribunal”), made 7 February 2022, and consequential orders made on 4 May 2022 which determined an approved access agreement in accordance with the earlier decision and submissions received subsequently.

2 The application for leave to appeal was filed on 14 February 2022. The fact that it was filed before the Tribunal had determined the approved access agreement is not an issue between the parties.

3 On 9 March 2022, Grant CJ ordered that the application for leave to appeal and the appeal be heard together, for the reason that the success of the application for leave to appeal would rely on the merits of the proposed appeal. The grounds of appeal have been fully argued before me.

The nature of the appeal

4 Any appeal from the Tribunal's decision is governed by s 141 Northern Territory Civil and Administrative Tribunal Act 2014, which reads as follows:

141 Appeal to Supreme Court

• (1) A party to a proceeding may appeal to the Supreme Court against a decision of the Tribunal on a question of law.

• (2) A person may appeal only with the leave of the Supreme Court.

• (3) On hearing an appeal, the Supreme Court must do one of the following:

  • (a) confirm the decision of the Tribunal;

  • (b) vary the decision of the Tribunal;

  • (c) set aside the decision and:

    • (i) substitute its own decision; or

    • (ii) send the matter back to the Tribunal for reconsideration in accordance with any recommendations the Supreme Court considers appropriate;

• (d) dismiss the appeal.

5 Appeals from the Tribunal to the Supreme Court are thus restricted under the terms of s 141(1) of the Act to “a question of law”. The effect of the same restriction, on appeals to the Supreme Court from the Work Health Court under s 116(1) Return to Work Act 1986 was considered by Mildren J in Tracy Village Sports & Social Club v Walker, 1 and repeated by this Court in Wilson v Lowery, 2 as follows:

• (1) In the process of arriving at an ultimate conclusion a trial judge goes through a number of stages. The first stage is to find the preliminary facts. This may involve the evaluation of witnesses who gave conflicting accounts as to those facts. If the trial judge prefers one account to another, that decision is a question of fact to be determined by him and is not reviewable on appeal. It may be that the reason given for preferring one witness to another is patently wrong. Nevertheless, no appeal lies: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156; Haines v Leves (1987) 8 NSWLR 442 at 469–470.

• (2) Regardless of the trial judge's reasons, if there is evidence which, if believed, would support the finding, there is no error of law: Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465.

• (3) If, on the other hand, there is no evidence to support a finding of fact which is crucial to an ultimate finding that the case fell within the words of the statute (for example, that injury by accident arose out of the course of the employment, or that the failure to give notice was occasioned by mistake), there is an error of law: Nicolia v Commissioner of Railways (supra); Tiver Constructions Pty Ltd v Clair (supra), per Martin and Mildren JJ (at 145–146); Haines v Leves (supra) (at 156).

• (4) But, a finding of fact cannot be disturbed on the basis that it is “perverse”, or “against the evidence or the weight of the evidence or contrary to the overwhelming weight of evidence”. Nor may this Court review a finding of fact merely because it is alleged to ignore the probative force of evidence which is all one way, even if no reasonable person could have arrived at the decision made, and even if the reasoning was demonstrably unsound: Haines v Leves (at 469–470).

• (5) The second stage is the drawing of inferences by the trial judge from the primary facts to arrive at secondary facts. This is subject to the same limitations that apply to primary facts.

• (6) If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law. If there are primary facts upon which a secondary fact might be inferred, there is no error of law.

• (7) It is not sufficient that an appellate court would have drawn a different inference from those facts. The question is, whether there were facts upon which the inference might be drawn. If a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law and its decision can be reviewed by the courts: Instrumatic Ltd v Supabrase Ltd [1969] 1 WLR 519 at 521; [1969] 2 All ER 131 at 132, Lord Denning MR, with whom Edmund Davies LJ and Phillimore LJ agreed; Edwards (Inspector of Taxes) v Bairstow [1956] AC 14. 3

6 The above statement is concerned largely with the process of fact-finding and the drawing of inferences from facts found. The principle to be derived is that findings of fact made by the Tribunal and inferences drawn on the basis of those facts are not open for reconsideration on the merits and necessarily stand unless infected by error of law. In this context, want of logic is not synonymous with

error of law, as Mason CJ observed in Australian Broadcasting Tribunal v Bond: 4

…. at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

7 Although the distinction between errors of fact and errors of law is a crucial distinction in many fields of law where it is critical to the existence of a right of appeal, it does not appear that the courts have settled on a test of general application to make that distinction clear beyond question in...