PARTIES MINISTER FOR MINERALS' and ENERGY v VAUGHAN-TAYLOR and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and MEAGHER JJA 19 April 1991, 14 May 1991 [1991] NSWCA 201 MINISTER FOR MINERALS AND ENERGY vy VAUGHAN-TAYLOR and ANOR APPEAL from Land and Environment Court — Proceedings based on Environmental Planning and Assessment Act 1979, s76 and on Environmental Offences and Penalties Act 1989, s25 — Issue raised as to whether a mining lease was valid — Minister for Minerals and Energy joined as party to the proceeding — Appeal by that Minister against joinder — Minister argued that no consent had been given to such proceedings by the State Pollution Control Commission and that there had been no consultation between Ministers concerned — Absence of consultation not proved before judge — Statement by counsel that no consultation had taken place. Held: (Mahoney JA dissenting) Appeal dismissed — Consultation may be had after proceedings commence (per Priestley JA) Absence of consultation not proved (per Meagher JA). Mahoney JA Since at least 10 February 1983 David Mitchell-Melcann Pty Limited ("the miner') had operated a mine upon the relevant land. In April 1990 Mr Keir Gerard Vaughan-Taylor ("the plaintiff') commenced proceedings in the Land and Environment Court against the miner to stop such mining. On 14 January 1991, those proceedings not having yet been determined, the Minister for Minerals and Energy ("the Minister') granted a mining lease (No 1239) to the miner over some or all of the subject land. On 1 February 1991 the plaintiff filed an amended application in the proceeding and sought an order from that court that the Minister be joined as a respondent in the proceeding. Hemmings J made such an order. The Minister has, with leave, appealed to this Court against his Honour's order. The facts as they were before the learned judge were somewhat complicated. However, before this Court Mr Donovan QC for the Minister and Mr McClellan QC for the plaintiff have reduced the issues and the matters relevant to them to smaller proportions. I shall state briefly the facts as they have emerged before this Court. The present problem arises because of the practice which has been adopted by the legislature of setting up courts of limited jurisdiction to deal with limited classes of cases and consequently of fragmenting the jurisdiction of courts of general jurisdiction in this State. Not infrequently, this Court has before it appeals concerned, not with the merits of the disputes between parties, but with technical questions of which court has the power to determine the particular dispute, on what materials it may act, and what orders may or may not be made: see, eg, Clyne v Deputy Commissioner of Taxation (1983) 1 NSWLR 110 at 118; Hinchen v Hinchen (1984) 1 NSWLR 195 at 203; Strathfield Municipal Council v Drew (1985) 1 NSWLR 338 at 343; Norris v Norris (1985) 1 NSWLR 472 at 473. The present proceeding, in which the court has had the assistance of six lawyers appearing for the respective parties, is a case of that kind. 2 UNREPORTED JUDGMENTS The Land and Environment Court is a court having limited jurisdiction: it has, and has only, the jurisdiction vested in it by or under the Land and Environment Court Act 1979 and certain other Acts. The Land and Environment Court Act, as far as is here relevant, vests in that Court: "\.. the same civil jurisdiction as the Supreme Court would, but for s71, have to hear and dispose of proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law; (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law; (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function; and... "A planning or environmental law" is defined by s20(3). In addition, by s25 of the Environmental Offences and Penalties Act 1989, jurisdiction is vested in that Court in respect of proceedings "for an order to restrain a breach, or a threatened or apprehended breach of this or any other Act, or any statutory rule under an Act, if the breach, or the threatened or apprehended breach, is causing or is likely to cause harm to the environment". But proceedings may be brought before the Court under s25 only in particular circumstances: to these I shall subsequently refer. The proceedings as originally brought by the plaintiff against the miner were, the court is informed, based upon s76 of the Environmental Planning and Assessment Act 1979. By that section it is provided that a person shall not carry out development on land the subject of an environmental planning instrument unless, where consent is required for the development, that consent has been obtained. The proceeding, as originally framed, was essentially to restrain development by mining, that development not having the relevant consent. The defence relied on by the miner, or at least the substantial defence, was, as the court is informed, a claim to existing use rights. The contention was that, within the provisions of Div 2 of Pt IV of the Environmental Planning and Assessment Act, the miner was entitled to do that which the plaintiff complained of because of existing use rights as there referred to. In a proceeding so framed, no reliance was to be placed upon the existence of any rights granted under the relevant mining legislation as such: the court has been informed that the existence of such rights would not, as such, provide a defence to a proceeding for breach of s76 of the Environmental Planning and Assessment Act. It may be that the existence of mining rights, if any, might, in particular circumstances, provide evidence of matters relevant to the issue whether there was an existing use of the land at a particular point in time: I do not intend by what I have said to deal with such a matter. But the validity of any rights granted under, eg, the Mining Act 1973 would not as such be relevant in that regard. Accordingly, there would be no issue to which the validity of such rights would be of particular relevance and accordingly the Minister would be neither a necessary nor a proper party in such a proceeding. It has not been argued, upon this appeal, that the grant of a mining lease of any kind here relevant would operate so as to render unnecessary a consent of the kind referred to in s76 of the Environmental Planning and Assessment Act. I shall, for present purposes, assume this to be the case. I come now to the circumstances which have given rise to the present dispute. In 1986 the Minister had granted a mining lease (No 1156) in respect of the subject land but, it would appear, questions arose as to the validity of that lease. WARTIES MINISTER FOR MINERALS and ENERGY v VAUGHAN-TAYLOR and ANOB (Mahoney JA) On 21 March 1990, the miner lodged a mining plan with the Department of Minerals and Energy. Whether pursuant to what was then done by the miner or otherwise, the Minister, on 14 January 1991, granted the mining lease (No 1239) to the miner under the Mining Act 1973. The information before this Court discloses that the plaintiff had moved the Land and Environment Court for an order that the Minister be joined as a respondent in the then existing proceeding but that motion had been dismissed. On 1 February 1991 the plaintiff again moved for an order that the Minister be so joined as a respondent and an amended application, as in a Class Four proceeding, was filed in the existing proceeding. It was upon the basis of that application that Hemmings J ordered the joinder of the Minister which is the subject of the present appeal. It is, the court is informed, intended by the plaintiff in the proceedings as so amended to raise the issue of the validity of Mining Lease No 1239. The amended points of claim do not refer in terms to that mining lease: it may be that, when they were drafted, the lease or the details of it were not known to the plaintiff. (I note that, in the papers before this Court, the copy of the amended points of claim bears date 22 February 1991 but reference is made in these points of claim: cf CL42 et seq; to proposals for the grant of the mining lease rather than to the lease itself). It is the intention of the plaintiff, as the court has been given to understand, to contend that Mining Lease No 123 was invalid because, as it is contended, it did not comply with the terms of the Mining Act 1973. Reference is made, in the amended points of claim, to the requirement of s113(1B) of that Act that notice be sent by the Minister to the Director of Environment and Planning and to the fact, as it is suggested, that no notices were given pursuant to s116 of the Mining Act to, inter alia, the relevant shire council. The contention is to be that because of such defects the lease is invalid. The amended points of claim do not set forth the orders to be sought from the Land and Environment Court on hearing. It is, as I have indicated, proposed to contend that the mining lease is invalid although, it has been said before this Court, it will or may not be asked that there be a formal declaration to that effect. In this context, the parties raised, in the Land and Environment Court, inter alia two questions: whether the Minister should be joined in the proceeding as amended; and the effect of s25 of the Environmental Offences and Penalties Act. The question of parties, at least in proceedings governed by Chancery or judicature procedures, has always been one of difficulty or at least "of great complexity": see Shales v Lieschke (1985) 3 NSWLR 65 at 83-4; (1987) 162 CLR 447. If it were proposed to seek a declaration that the mining lease was invalid, prima facie the Minister would be either a necessary or, at least, a proper party. The mining lease is, as the court understands, one to which the Minister is a party. If the lease be such, then the Minister will have under it both rights and obligations and the declaration of the validity of the lease will therefore affect the proprietary interests which he holds. In such circumstances, prima facie he should be joined. It has been suggested that no formal declaration of invalidity may be sought. But it would, in my opinion, be within the discretion of a judge on application to direct that a party whose interests are necessarily to be affected by the decision of the court should be joined even if no formal declaration of invalidity will be sought. If, for example, a finding of invalidity will be a necessary step in arriving at the relief sought against one of the parties to the lease, it would in my opinion 4 UNREPORTED JUDGMENTS be within the discretion of the judge in appropriate circumstances to direct such joinder. Prima facie therefore it was within the discretion of Hemmings J to order a joinder in the present case. However, it has been submitted for the Minister, the present case is complicated by reason of the provisions of s25 of Environmental Offences and Penalties Act. Mr Donovan QC, for the Minister, has submitted that, because of s25 and the facts that exist in relation to it, the joinder cannot be ordered. He accepts the concession made by Mr McLlellan QC, for the plaintiff, that the Land and Environment Court has no jurisdiction to hear the plaintiffs claim in respect of the validity of the mining lease except under s25 of the Environmental Offences and Penalties Act. And, his contention suggests, that jurisdiction does not exist because the conditions on which the jurisdiction depends have not been satisfied. And, he contends, if there is no jurisdiction to consider the validity of the mining lease, then the Minister is not so affected by the pending proceeding that he can or should be joined. It is therefore necessary to consider the circumstances in which the Land and Environment Court has jurisdiction to determine the present matter. It has been accepted that the plaintiff may bring proceedings which invoke the jurisdiction of that court under s25 only if he is within the phrase "any other person" in s25(2)(e). But, if this be so, then, the Minister contends, the proceeding can be brought only if two conditions are satisfied: (i) that the proceedings be brought "with the consent of the State Pollution Control Commission" within s25(2)(e); and (ii) the Minister for Environment and Planning has "before the proceedings may be brought": s25(3); consulted the Minister as being the Minister "responsible for the administration of" the Act in question, viz, the Mining Act 1973. The Minister contends that the consent of the Commission has not been obtained. A form of consent was obtained. That consent appears from the letter from Environmental Defender's Office Limited dated 21 June 1990 to the Director, State Pollution Control Commission, and the reply from the Acting Director of that Commission to the company dated 19 July 1990. That purports in terms to be the grant of a consent for the purposes of s25(2)(e). However, it is the contention of the Minister that that consent does not extend to the proceedings as subsequently they have been amended. Second, the Minister contends that there was no consultation as required by s25(3). Mr Donovan QC, from the Bar table, has informed this Court that that is the fact. It did not appear in terms before Hemmings J. Mr Donovan QC said that it had been the intention of the Minister to prove the fact formally but the Minister had not been allowed to do that, presumably because the learned judge took the view that it would not assist if such a fact was proved. Mr McClellan QC suggested at the outset that the fact of consultation should be inferred from the terms of the letters: in particular because, as it was said, the presumption of regularity involved that the Commission's consent would not be given if the consultation had not taken place. I do not think that this is, in principle, correct. There are, in my opinion, two distinct conditions set up by s25. No doubt the consultation between the Ministers would be directed, inter alia, to avoiding the necessity of proceedings because of the suggested breach. It does not appear whether the Commission is completely independent of the Minister, in the sense that it should determine WARTIES MINISTER FOR MINERALS and ENERGY v VAUGHAN-TAYLOR and ANOB (Mahoney JA) whether consent should be given without taking into account the view of the Minister: that matter has not been argued. It may in some circumstances be convenient for the Commission to give or refuse consent only after consultation has taken place: but that is not required of it by the statute. But, however that be, it is not in principle required that the consent of the Commission be given only after the Ministerial consultation. Therefore, the fact that a consent has been given does not, as such, lead to the inference that there was consultation. It is, in my opinion, not necessary for the Commission to be satisfied, before it gives a consent, that that consultation has taken place. But, as was said during argument, I do not think that matters of this kind should turn upon inferences from letters directed to other matters. The court is, in my opinion, entitled to ask and to be told by the Minister whether consultation has taken place. The Minister, through his counsel, has said that it has not. It is, of course, open to the plaintiff to contest what the Minister has said. But, as I understand the plaintiff's position, the absence of consultation is in substance not now contested. For myself, I would not draw any inference from the two letters in question contrary to what the Minister has said. Upon the material now before the court, I would conclude that the relevant consultation had not taken place. It remains to determine what is the relevance of these matters for the purpose of the present appeal. As I understand the Minister's submissions, the thrust of them is that, when the learned judge was considering the application to join the Minister as a party, he should have taken into account: that the Minister could not be a necessary or proper party unless the proceeding was one which could properly be brought under the jurisdiction given by s25 of the Environmental Offences and Penalties Act; that on the evidence before him, that jurisdiction was not available to be exercised; and that therefore the Minister was not a party to be joined. The contrary view would be that, the points of claim having in fact been amended, the question whether the Minister was proper to be added as a party was something to be argued when the availability of the jurisdiction given by s25 was to be determined by the court. Alternatively, the points of claim having been already amended to assert that jurisdiction, it was for the miner and/or the Minister to move to strike out the relevant part of the points of claim upon the basis that s25 had not been satisfied and on that application to have the Minister removed from the proceeding. But upon the facts as they are before this Court, the s25 jurisdiction is not available and therefore there will be no issue in the proceedings to which the Minister will properly be a party. I do not think that the court need refer the matter back to the Land and Environment Court merely to allow the Minister to move that Court for such an order or, a fortiori, to force the Minister to take part as a party in a proceeding before the court and then, at the end of it, apply to be dismissed from it. I am conscious that, in the joinder of parties, the learned judge exercised a discretion in a procedural matter and this Court will normally be slow to interfere with the decision made in such a matter. But information before the court on appeal was not before the learned judge, at least in the form in which it is now before this Court. I think it is open to this Court to exercise the discretion afresh. On that basis, in my opinion, this is not a matter in which it is proper that the Minister be joined and he should not have been joined. 6 UNREPORTED JUDGMENTS In my opinion, therefore, the appeal should be upheld. The order joining the Minister should be set aside. The plaintiff should pay the costs of the Minister and of the miner of this appeal. The plaintiff should have a certificate under tha Suitors Fund Act if otherwise qualified. Priestley JA I agree with Meagher JA's reasons except that I have an alternative view on the last argument he deals with, which he called the "fourth, and final, submission". This argument for the Minister concerned the construction of s25(1), s25(2) and s25(3) of the Environmental Offences and Penalties Act 1989. The text of these subsections is set out by Meagher JA. In my opinion it is not necessary for the consultation required under subs(3) to be held before the consent of the State Pollution Control Commission referred to in subs(2)(e) may be given; nor do I think the consultation is something the happening of which is necessary before the court can exercise jurisdiction on proceedings brought under subs(1) by one of the persons mentioned in subs(2). The way in which the requirement is expressed clearly, to my mind, conveys the idea that the consultation must take place and that the court will not allow the proceedings to go forward, in the ordinary course, until there has been such consultation and an opportunity for any consequences of such consultation to operate. This does not however prevent the court exercising jurisdiction in the meantime. The obvious example is the case requiring an urgent ex parte injunction to prevent some irreversible step. It seems to me most unlikely that the legislation has the object of preventing the court from granting such an injunction, the consequence of such prevention being, if the impeded complainant party's fear was soundly based, that irreversible harm to the environment would occur, because of some difficulty in having an immediate consultation between ministers, nor do I think the language of the subsections requires this result. The language instead suggests to me that if subs(1) proceedings are brought by a subs(2) person before a subs(3) consultation, the court will not exercise its jurisdiction by making any final orders affecting the substantive rights of parties unless there is some good reason for doing so; further the court will be slow to exercise its jurisdiction even procedurally until there has been an opportunity for consultation. But where there has been an opportunity for consultation, the court's jurisdiction is not to be stultified by Ministers refusing or neglecting or for whatever reason failing to carry out their clear duty of promptly consulting in accordance with the requirement of subs(3). The court is entitled to assume Ministers will fulfil their obligations and to exercise jurisdiction accordingly. I find it exceedingly strange that in this case the Minister should instruct his counsel to tell the court that he and another Minister, each representing the Crown, and each servants of the same government and the same citizens, have not complied with their obligations under s25(3) and stranger still that he should base an appeal on that assertion. I say "their" obligations because I find it impossible to believe that, in the circumstances of this case, the other Minister referred to in s25(3) is not aware, through his officers, that a situation has arisen requiring a subs(3) consultation, and because once aware of that situation, that Minister is obliged, just as much as the first Minister, promptly to join in the necessary consultation. I agree with Meagher JA that the appeal should be dismissed with costs. WARTIES MINISTER FOR MINERALS and ENERGY v VAUGHAN-TAYLOR and ANOR (Meagher JA) Meagher JA In April 1990 Mr Vaughan-Taylor, the present first respondent, commenced proceedings against David Mitchell-Milcann Pty Ltd, the second respondent, to prevent him from mining certain land. He relied on two causes of action. The first arose out of s76 of the Environmental Planning and Assessment Act 1979. It consisted of an allegation that David Mitchell-Milcann Pty Ltd was carrying out certain activities on the land without the local council's development consent in circumstances where such consent was required. That raised an issue between Vaughan-Taylor and David Mitchell-Milcann Pty Ltd and nobody else. From that time until the present the appellant Minister had no interest in that issue. The second cause of action was an allegation that the second respondent was mining the land in question although no mining lease (or other empowering instrument) had been granted to it under the Mining Act 1973. This cause of action arose under s25 of the Environmental Offences and Penalties Act 1989. This, again, was an issue which concerned only the first and second respondents. At that stage it was of no concern to the appellant Minister. However, apparently towards the end of 1990 or the beginning of 1991, things changed. The Minister granted the second respondent a mining lease over some or all of the land in question. This, according to the second respondent, put paid to the first respondent's second cause of action. The first respondent contended that it did not as the Mining Lease in question was invalid. If this were so, according to the first respondent, his second cause of action still survived and, if he was successful in his contentions, he was still entitled to precisely the same relief in respect of that cause of action as he originally claimed. The action, after the mining lease had been granted, simply gave rise to an additional question. There is nothing unusual in litigation between A and B raising a dispute about the legal effects of the activities of C. One therefore wonders, at first sight, why the application to join the Minister as a party ever arose. There are two answers to this conundrum. We enquired of Mr McClellan QC, senior counsel for the first respondent, why the application was made and he informed us that, in order to prove the invalidity of the mining lease, a subpoena was served on the Minister to produce the documents concerning the grant of the lease, but that on the return of the subpoena before the learned Chief Judge of the Land and Environment Court, Cripps J, his Honour declined to permit the subpoena to be called on because the Minister was not a party. There must have been a misunderstanding between his Honour and counsel. Subpoenas can be issued to non-parties and I am sure Cripps J would not have intended to suggest otherwise. At any rate, what occurred resulted in this application to join the Minister as a party. That is one answer. The other is that although the validity of the Lease could be litigated between the two respondents, since a determination of that question would also involve a finding that the Minister had no rights under the lease if the first respondent's argument were upheld, the Minister was either a proper party or a necessary party. In Cambridge Credit Corporation Ltd v Parkes Development Pty Ltd (1974) 2 NSWLR 590 this Court held that a person in the Minister's position was either a proper party (per Hope AJA) or a necessary party (per Hutley JA). (As to the distinction between proper parties and necessary parties, see West Midland Rly Co v Nixon (1863) 1 HandM 176, 71 ER 77, Chadwick v Maden (1851) 9 Hare 188, 68 ER 469, and Daniell's Chancery Practice 8th ed, 173). An application was therefore made by the first respondent to join the Minister as an additional respondent. It came before Hemmings J who, citing the Cambridge Credit Case, acceded to the application over the Minister's opposition. Leave to appeal from that decision was, perhaps surprisingly, granted 8 UNREPORTED JUDGMENTS by this Court. In my view his Honour was correct. Several matters should be noted. The first is that in essence the litigation would remain exactly the same after joinder of the Minister as before joinder. The first respondent still sought against the second respondent exactly the same relief as before. All that had happened was that an additional hurdle to his success had been erected, and he wished to overcome that hurdle. The first respondent was maintaining his original two causes of action, as originally framed, and against the same opponent. The second is that no relief was sought against the Minister of any kind. It could not be. The Land and Environment Court would have no jurisdiction to grant relief, even by way of declaration, against the Minister. However, the question of the invalidity of the lease was a step in the cause of action which the Land and Environment Court did have jurisdiction to determine. The Minister was joined not because any relief was sought against him but because an acceptance of the first respondent's case would involve pronouncing on his rights, a matter in which he was interested. What, then, were the Minister's professed reasons for opposing joinder? Both before Hemmings J and in this Court, they were four in number. The first is that the joinder of the Minister was occasioned by the addition of a new cause of action which arose after the commencement of the proceedings. This submission can be dealt with shortly. No new cause of action was being relied on. The joinder was occasioned by a new factual ingredient which the second respondent was relying on in order to defeat the first respondent's existing second cause of action. The second submission was that the Land and Environment Court had no power to investigate the validity of the mining lease. This may be dealt with equally shortly. It had, as was conceded, no jurisdiction to determine a direct challenge to the mining lease as such, but it did have jurisdiction to determine that question in an indirect or collateral fashion. The Land and Environment Court has jurisdiction to determine any question which arises incidentally to a matter in which it has jurisdiction. In National Parks and Wildlife Service v The Stables Perisher Pty Ltd (1990) 20 NSWLR 573, Gleeson CJ (with whom I agreed) said: "The Land and Environment Court, of course, in resolving a claim that is properly brought within its jurisdiction, has the power and the duty to decide all questions of fact or law that need to be decided in order to deal with that claim." The third submission was that the proceedings, after joinder of the Minister, exceeded the consent granted by the State Pollution Control Commission. In order to understand this and the following submission it is necessary to set out in full s25(1), s25(2) and s25(3) of the Environmental Offences and Penalties Act 1989. Those subsections are in the following form: 25(1) Proceedings may be brought in the Land and Environment Court for an order to restrain a breach, or a threatened or apprehended breach, of this or any other Act, or any statutory rule under an Act, if the breach, or the threatened or apprehended breach, is causing or is likely to cause harm to the environment. (2) Proceedings may be brought under this section by: (a) the Minister; or (b) a member of the State Pollution Control Commission authorised in writing by the Minister for the purposes of this section; or (c) the State Pollution Control Commission; (d) a member or officer of the State Pollution Control Commission authorised in writing by the Commission for the purposes of this section; or (e) any other person with the consent of the State Pollution Control Commission. WARTIES MINISTER FOR MINERALS and ENERGY v VAUGHAN-TAYLOR and ANOB (Meagher JA) (3) If another Minister is responsible for the administration of such an Act or statutory rule, that Minister is to be consulted by the Minister before the proceedings may be brought, and a certificate by the Minister or such a member or officer of the State Pollution Control Commission certifying that the consultation has occurred is evidence of that fact." In this case, the first respondent did have a consent from the State Pollution Control Commission. It was necessary for him to do so because he was suing, in his second cause of action, to restrain alleged breaches of the Mining Act. In its terms that consent, as Mr Donovan QC, senior counsel for the appellant Minister, conceded, was phrased widely enough to cover the proceedings as originally constituted. But he contended that it was not wide enough to cover the proceedings as they would be framed after the joinder of the Minister. This submission also rests on a misconception. The reframed proceedings were precisely the same in all relevant respects as the original proceedings. The fourth, and final, submission was that there had been no Minister-to-Minister consultation as required by s25(3) of the Environmental Offences and Penalties Act 1989. That submission goes to the validity of the first respondent's second cause of action, not to the propriety of joining the Minister as an additional respondent. Certainly, if it had been made out, it would have furnished Hemmings J with a discretionary ground for refusing joinder. But it was not made out before Hemmings J. It would have been easy enough for the Minister to have made it out if he wanted to. All he would have to do was swear an affidavit to that effect. He did not do so, and presumably adopted this course advisedly. There was no evidence on the issue one way or the other. I cannot see why Hemmings J would be obliged to assume that no such consultation had taken place. That no such consultation had taken place was asserted before us as a fact by Mr Donovan QC from the Bar table, but that is not evidence and I do not see why we should be bound by it. The first respondent may wish to deny the absence of such consultation, or alternatively may wish to argue that its absence was not fatal or to contend that the facts on which the Minister's assertion is based show that there was a consultation within the meaning of the word as used in subs(3). The first respondent should have the right to argue these matters if he wishes; there is no reason why the Minister should not raise the matter as a defence when the action comes on for hearing. Luse the expression "professed reasons" in the preceding paragraph advisedly. There is occasion to wonder whether they are the real reasons. The Minister, as we have seen, objected to the production of his documents when he was not a party. In the appeal he contended that one horrendous and unacceptable result of his joinder would be that he may be compelled to discover them. This may generate a suspicion that he has something to hide. The appeal should be dismissed with costs. Appeal dismissed with costs. Counsel for Appellant: BH Donovan QC with MS Willmott and J Maston Solicitor for Appellant: HK Roberts, Crown Solicitor Counsel for First Respondent: PD McClellan Qe with PW Larkin Solicitor for First Respondent: Environmental Defenders Office Counsel for Second Respondent: W Thibault (SOL) 10 UNREPORTED JUDGMENTS Solicitor for Second Respondent: Newman and Pengilley