Mees v Kemp [2004] FCA 366

FEDERAL COURT OF AUSTRALIA

Mees v Kemp [2004] FCA 366 ADMINISTRATIVE LAW – application for review of Minister's decision that proposal by Victorian Government to construct, operate and maintain northern section of Mitcham-Frankston Freeway not a "controlled action" – application for review of purported decision of Minister not to reconsider first decision – application for extension of time under s 11(1)(c) of Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether Minister bound to take into account that, as a consequence of construction of northern section, "strong chance" Eastern Freeway-Greensborough link would be built and result in harm to environment – whether Minister made purported decision – whether "substantial new information" before Minister – whether Minister's reasons for substantive decision satisfied requirements of s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether Court should extend time Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 11(1)(c) and 13 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3, 67, 75 and 78 Mees v Roads Corporation [2003] FCA 306 discussed Humane Society International Inc v Minister for Environment and Heritage (2003) 126 FCR 205 at 208-211 referred to Swain v Brinegar 542 F.2d 364 (1976) at 368-369 referred to Indian Lookout Alliance v Volpe 345 F. Supp. 1167 (1972) at 1170 referred to Indian Lookout Alliance v Volpe 484 F.2d 11 (1973) referred to Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 referred to Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 discussed Kivi v Forestry Commission of New South Wales (1982) 47 LGRA 38 referred to Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516 at 541 referred to Tasmanian Conservation Trust Inc v Minister for Resources (No 2) (1996) 65 FCR 25 at 35 referred to Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500 applied Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 referred to Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9 followed Soldatow v Australia Council (1991) 28 FCR 1 at 2 referred to Brackenreg v Comcare Australia (1995) 56 FCR 335 referred to Comcare Australia v Mathieson [2004] FCA 212 referred to Preston v Secretary, Department of Family and Community Services [2004] FCA 300 referred to Marsden v The Queen [2002] FCAFC 229 at [16] referred to Minister for Immigration & Multicultural & Indigenous Affairs v Sochorova [2002] FCAFC 365 at [10] referred to Parker v The Queen [2002] FCAFC 133 at [6]–[7] referred to Goldie v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 121 FCR 383 at 393-4 referred to Comcare v A'Hearn (1993) 45 FCR 441 followed Westwood v Human Rights and Equal Opportunity Commission [2004] FCA 153 considered Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 at [16] considered