Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

BHP Coal Pty Ltd v Treasurer and Minister for Trade and Investment

 

[2017] QSC 326

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

BHP Coal Pty Ltd & Ors v Treasurer and Minister for Trade and Investment; BHP Coal Pty Ltd & Ors v Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sports [2017] QSC 326

PARTIES:

In BS 11313 of 2015:

BHP COAL PTY LTD (ABN 83 010 595 721)

(first applicant)
BHP BILLITON MINERALS PTY LTD
(ABN 93 008 694 782)
(second applicant)
BHP QUEENSLAND COAL INVESTMENTS PTY LTD (ABN 56 098 876 825)
(third applicant)
UMAL CONSOLIDATED PTY LTD (ABN 29 000 767 386)
(fourth applicant)
MITSUBISHI DEVELOPMENT PTY LTD (ABN 17 009 779 873)
(fifth applicant)
QCT INVESTMENT PTY LTD (ABN 45 010 487 831)
(sixth applicant)
QCT MINING PTY LTD (ABN 47 010 487 840)
(seventh applicant)
QCT RESOURCES PTY LIMITED (ABN 74 010 808 705)
(eighth applicant)

v

TREASURER AND MINISTER FOR TRADE AND

INVESTMENT

(respondent)

 

IN BS 2371 of 2016:

BHP COAL PTY LTD (ABN 83 010 595 721)

(first applicant)
BHP BILLITON MINERALS PTY LTD
(ABN 93 008 694 782)
(second applicant)
BHP QUEENSLAND COAL INVESTMENTS PTY LTD

(ABN 56 098 876 825)
(third applicant)
UMAL CONSOLIDATED PTY LTD
(ABN 29 000 767 386)
(fourth applicant)
MITSUBISHI DEVELOPMENT PTY LTD
(ABN 17 009 779 873)
(fifth applicant)
QCT INVESTMENT PTY LTD (ABN 45 010 487 831)
(sixth applicant)
QCT MINING PTY LTD (ABN 47 010 487 840)
(seventh applicant)
QCT RESOURCES PTY LIMITED (ABN 74 010 808 705)
(eighth applicant)

v

TREASURER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER PARTNERSHIPS AND MINISTER FOR SPORTS

(respondent)

FILE NO/S:

BS 11313 of 2015

BS 2371 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

20 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2017

JUDGE:

Davis J

ORDER:

In relation to the Applicants’ application made in 11313 of 2015, I make the following orders:

  1. The First to Fourth Applicants have leave to file and serve a further amended application for a statutory order of review in the form appearing at pages 58 to 81 in the bundle of exhibits attached to the affidavit of John Hugh Paynter sworn 17 November 2017, on or before 12 January 2018.
  2. The Respondent deliver to the solicitors for the First to Fourth Applicants and the solicitors for the Fifth to Eighth Applicants copies in electronic form (in conformity with Practice Direction 10 of 2011) of the following documents or classes of documents, together with a list of the  documents, on or before 22 January 2018:
    1. all documents (including any instrument of delegation) comprising or evidencing the authorisation of the person or persons who made any “original assessment” or “earlier reassessment” as described in s 331B of the Mineral Resources Act 1989 (Qld) for each of the royalty returns for the period from 1 July 2005 to 31 December 2012 for each of the Saraji, Peak Downs, Norwich Park, Gregory, Goonyella and Blackwater coal mines;
    2. all documents comprising or evidencing the workpapers, including any calculations and any underlying source documents, prepared, used or relied upon to determine the reassessed royalty amounts for all audit periods.
  3. The Respondent deliver to the solicitors for the First to Fourth Applicants and to the solicitors for the Fifth to Eighth Applicants an amended list of documents identifying the persons who made notations on the Quarterly Royalty Returns referred to in the list of documents enclosed with Crown Law’s letter dated 14 July 2017 by 12 January 2018.
  4. All parties’ costs of the application are reserved.
  5. The application for a statutory order of review be listed for mention before Justice Davis on 9 February 2018.

In relation to the Applicants’ application made in 2371 of 2016, I make the following orders:

  1. The First to Fourth Applicants have leave to file and serve a further amended application for a statutory order of review in the form appearing at pages 82 to 104 in the bundle of exhibits attached to the affidavit of John Hugh Paynter sworn 17 November 2017, on or before 12 January 2018.
  1. The Respondent deliver to the solicitors for the First to Fourth Applicants and the solicitors for the Fifth to Eighth Applicants copies in electronic form (in conformity with Practice Direction 10 of 2011) of the following documents or classes of documents, together with a list of the  documents, on or before 22 January 2018:
    1. all documents (including any instrument of delegation) comprising or evidencing the authorisation of the person or persons who made any “original assessment” or “earlier reassessment” as described in s 331B of the Mineral Resources Act 1989 (Qld) for each of the royalty returns for the period from 1 January 2013 to 30 September 2015 for each of the Saraji, Peak Downs, Gregory, Goonyella, Blackwater, Daunia & Red Mountain, and Caval Ridge coal mines;
    2. all documents comprising or evidencing the workpapers, including any calculations and any underlying source documents, prepared, used or relied upon to determine the reassessed royalty amounts for all post-audit periods.
  2. The Respondent deliver to the solicitors for the First to Fourth Applicants and to the solicitors for the Fifth to Eighth Applicants an amended list of documents identifying the persons who made notations on the Quarterly Royalty Returns referred to in the list of documents enclosed with Crown Law’s letter dated 14 July 2017 by 12 January 2018.
  3. All parties’ costs of the application are reserved.
  4. The application for a statutory order of review be listed for mention before Justice Davis on 9 February 2018.

In relation to the Respondent’s (Treasurer’s) application made in both 11313 of 2015 and 2371 of 2010, I make the following orders:

  1. The application is dismissed.
  1. All parties’ costs of the application are reserved.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – STAY OF PROCEEDINGS AND INTERLOCUTORY RELIEF – where the applicants applied for leave to introduce further grounds for review – where the respondent opposed leave and cross-applied for the dismissal of existing grounds for review – whether leave to amend should be allowed and whether existing grounds should be dismissed at an interlocutory stage

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CASE MANAGEMENT – GENERALLY – where the applicants applied for a statutory order of review of the respondent Treasurer’s decision – where the present proceeding was an application including for leave at an interlocutory stage – where the respondent sought to have leave to amend refused – where the respondent further sought to have grounds dismissed – whether grounds should be dismissed or disallowed at an interlocutory stage

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – DISCRETION OF COURT AND POWER TO ORDER – where the applicants seek further discovery in relation to existing and new grounds for judicial review – where the respondent opposed the introduction of new grounds and sought the dismissal of existing grounds – whether the disclosure should be ordered in favour of the applicants

Acts Interpretation Act 1954 (Qld), s 9(1)

Judicial Review Act 1991 (Qld)

Judiciary Act 1903 (Cth), s 78B

Mineral Resources Act 1989 (Qld), s 331A, s 331B

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 573(2)(d), r 658

Aon Risk Services Australia Ltd v The Australian National University (2009) 239 CLR 175, applied

Birla Mt Gordon Pty Ltd v Miccon Hire Pty Ltd [2013] QCA 363, applied

Cement Australia Pty Ltd v Australian Competition & Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261, applied

FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754, cited

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, cited

Purcell v Venardos [1996] 1 Qd R 310, cited

COUNSEL:

JC Sheahan QC with T Bradley QC and S Cooper for the first to fourth applicants

L F Kelly QC with MF Johnston for the fifth to eighth applicants

M Brennan QC with M Hindman QC for the respondent

SOLICITORS:

Herbert Smith Freehills for the first to fourth applicants

McCullough Robertson Lawyers for the fifth to eighth applicants

G R Cooper Crown Solicitor for the respondent

  1. These were three applications before me all relating to two applications for statutory orders of review (the JR applications) which have been on foot for some time.  The JR applications[1] challenge decisions made by the Treasurer[2] under the provisions of the Mineral Resources Act 1989 (Qld).  The JR applications are both amended applications, having been amended pursuant to orders of Justice Jackson on 2 May 2017.[3]  The applications presently before me[4] are interlocutory applications filed in the JR applications.  The applicants seek to further amend the JR applications.  The Treasurer applies to strike out one of the grounds in each of the JR applications.
  2. The applicants in the JR applications can conveniently be described as BHP[5] and Mitsubishi.[6]  The respondent in the JR applications is the Treasurer.  The Attorney-General for the State of Queensland has intervened.  The Attorney-General has intervened because a point concerning the Commonwealth Constitution has arisen.  I am told that notices pursuant to s 78B of Judiciary Act 1903 (Cth) have been served.  Case management orders have been made to ensure the orderly hearing of the issue arising under the Constitution.[7]
  3. It is not necessary for me to go into any detail about the constitutional issue; suffice it to say that neither BHP nor Mitsubishi submit that any provision of the Mineral Resources Act is invalidated by the Constitution.  Rather, BHP and Mitsubishi will submit that the construction of certain provisions must be constrained so as to ensure constitutional validity.  Such an approach to construing a statute is well recognised and indeed is enshrined in s 9(1) of the Acts Interpretation Act 1954 (Qld). 
  4. The Attorney-General did not appear on the applications heard by me.  The applications did not concern the constitutional issue that has arisen.
  5. It is necessary to descend into a little of the detail of the dispute between the parties.
  6. The Treasurer has the power under the Mineral Resources Act to levy royalties against persons, relevantly here, those who extract coal.  The Minister is entitled to make an assessment of royalties pursuant to s 331A and, importantly here, to reassess royalties under s 331B. 
  7. BHP and Mitsubishi are in what is described as an “alliance” and, pursuant to that alliance, have won coal from a number coal mines in Queensland.  Obviously, the commercial arrangements between BHP and Mitsubishi are complicated but that description will suffice for present purposes.
  8. Royalties were assessed and then re-assessed pursuant to s 331B of the Mineral Resources Act.  By the reassessments, the Treasurer placed a value on the coal with which the applicants for judicial review do not agree. 
  9. The reassessments were the result of an audit conducted by the Office of State Revenue.  Correspondence passed between the Office of State Revenue and representatives of the applicants for judicial review between the time of the conduct of the audit and the time of the reassessment.  Given that some of the grounds of judicial review complain of a denial of natural justice, that correspondence may ultimately assume some significance.  The audit resulted in the decision of the Treasurer to reassess the royalties for the periods 1 July 2005 to 30 June 2008, 1 July 2008 to 30 September 2010 and 1 October 2010 to 31 December 2012 (the audit periods).  Ultimately, a letter was sent by the Office of State Revenue to the applicants for judicial review dated 14 October 2015.[8]  That letter is referred to in the material as the “audit exit letter”.  The audit exit letter is significant.  It explains the reason for the reassessment consequent upon the audit. 
  10. The first of the JR applications[9] challenges the decision of the Treasurer to reassess royalties payable over the audit periods.
  11. Later reassessments were performed.  These were for the periods 1 January 2013 to 31 August 2013 and 1 September 2013 to 30 September 2015 (the post audit periods).  The reasons for those latter reassessments were given as the reasons contained in the audit exit letter.  In other words, the reassessments for all periods are based upon the same premises.  The second of the JR applications[10] challenges the decision of the Treasurer to reassess royalties for the post audit periods.
  12. The JR applications are proceeding on the basis that the audit exit letter is the statement of reasons for all the decisions under review.
  13. The dispute between the parties then is as to the proper value of the coal for the purposes of the reassessments.  The applicants seek judicial review pursuant to the Judicial Review Act 1991 (Qld).  Consequently, the question is not one of fact as to the actual value of the coal.  The question is whether the decision by the Treasurer fixing the value of the coal was made in accordance with the Mineral Resources Act.
  14. The two JR applications are essentially the same, in that they raise the same issues.  They are to be heard together.  The applicants for judicial review seek, by the applications before me, to firstly amend the two JR applications and secondly to secure disclosure of documents.  They bring two applications: one in each of the JR applications.  The Treasurer resists, in part, the applications for amendment and resists in part the further disclosure.  The applications were brought by BHP.  Mitsubishi does not have an interest in all the orders sought by BHP.  However, Mitsubishi supports BHP in the application for the major amendments to the JR applications, the disclosure application, and the resistance of the Treasurer’s application.[11]  There is no need to distinguish between the interests of BHP and of Mitsubishi for the purposes of the present applications.  The Treasurer cross-applies to strike out ground 2 in each of the JR applications.
  15. I will put to one side for a moment the arguments about disclosure and turn firstly to the applicants’ application to amend the JR applications, and the Treasurer’s application to strike out ground 2 of the JR applications. 
  16. John Hugh Paynter is a solicitor and a partner of Herbert Smith Freehills, the solicitors for BHP.  Exhibited to his affidavit of 17 November 2017[12] are two draft further amended JR applications.  Orders are sought for leave to amend the JR applications consistently with the drafts.  The amendments are many and varied.  Some of the proposed amendments are only formal, but others add either new grounds or new particulars to existing grounds.  It is those substantive amendments which are opposed. 
  17. Ms Brennan QC for the Treasurer opposed the amendments primarily based on her submission that the grounds have no prospects of success.  Careful submissions were developed by Ms Brennan QC to that end.  Mr Sheahan QC for BHP made equally detailed submissions in support of the submission that the new grounds and particulars had prospects of success. 
  18. Ms Brennan QC pointed to delay and to earlier opportunities available to the applicants to have applied for the amendments that they now seek.  It is quite true that the applications to amend come late in the proceedings.  The two JR applications have been on foot since 2015 and 2016 respectively and are to be tried by me over a period of five days in the week commencing 28 May 2018.
  19. Before turning to the principles relevant to the exercise of discretion to either allow or refuse the applications for amendment, it is convenient to turn to a particular point which was raised in argument and which in my view highlights the desirability of allowing the amendments in the absence of any prejudice to the Treasurer.
  20. Both Mr Sheahan QC, when addressing me on behalf of BHP, and Mr Kelly QC, on behalf of Mitsubishi, mentioned the undesirability of the judicial review proceedings becoming fractured by way of an interlocutory appeal against orders I might make against the applicants on the present applications.[13]  The submissions made by Mr Sheahan QC and Mr Kelly QC arose because the Treasurer’s position through Ms Brennan QC was that I ought, on the present applications, finally determine points of construction of the Mineral Resources Act and upon such determination then find that the grounds of review sought to be added by further amendment, and the ground sought to be struck out, have no substance.  Mr Sheahan QC and Mr Kelly QC made what I thought was, with respect, an obvious submission to the effect that if questions of construction were finally determined against the applicants on the present applications then an appeal may be mounted against that determination by the applicants if they were so minded.
  21. Ms Brennan QC in a reply, referred to the submissions of Mr Sheahan QC and Mr Kelly QC on this issue as a “threat of an appeal”[14] and urged me, in essence, to ignore the submissions.
  22. I thought that the submissions of Mr Sheahan QC and Mr Kelly QC were completely proper.  This is litigation between the State and two corporations who are engaged in very major commercial activities.  The amounts of money at stake in the JR applications are enormous.  Significant legal resources have been devoted to the case by both sides.  It would be completely naïve to overlook those matters and to proceed on the basis that any decision I might make on these applications on the construction of the Mineral Resources Act would not be the subject of appeal.  Of course any interlocutory appeal may spell the end of the trial dates in May next year.  Justice Jackson, on an application by the applicants heard on 2 May 2017, which resulted in orders amending the JR application, expressed the same concern.[15]
  23. A far more desirable process, if it can be achieved, is the conventional one.  By that, I mean that I try the JR applications in May 2018, and in the process hear all arguments of the parties and deliver one judgment on all issues.  That judgment may or may not then lead to an appeal but if it does there will be a single appeal to the Court of Appeal and, perhaps, beyond.  The alternative approach, namely making final determinations now on questions of construction has the potential to lead to multiple hearings in the Trial Division and multiple appeals.
  24. It is important I think, and consistent with the case management objectives in the Uniform Civil Procedure Rules 1999 (Qld)[16] to avoid the fracture of the proceedings if possible.  My starting point, then, on these applications is to achieve the conventional process (as I have described it) unless there are good reasons why I ought to depart from such a course.
  25. In Aon Risk Services Australia Ltd v The Australian National University,[17] the High Court revisited its decision in Queensland v JL Holdings Pty Ltd.[18]  In Aon, the court held that case management considerations should be taken into account when considering applications for amendment of pleadings.  The fact that here there are no pleadings as such, but rather applications which stipulate grounds, is a difference of no significance.
  26. Various considerations were identified by the High Court in Aon as being relevant to the consideration of applications for amendment.  Those considerations include: (i) the stage the proceedings have reached by the date the application for amendment is made;[19] (ii) assumed and actual prejudice;[20] (iii) any explanation for the delay;[21] and (iv) costs ramifications.[22]
  27. Rule 5 of the Uniform Civil Procedure Rules 1999 (Qld) identifies case management objectives.  The considerations in Aon have been held by the Court of Appeal to be relevant to those objectives.[23]
  28. In Cement Australia Pty Ltd v Australian Competition & Consumer Commission,[24] the Full Court of the Federal Court of Australia said, of the considerations identified in Aon.

Aon Risk is not a one size fits all case.  Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case.  As the plurality in Aon Risk observed at [75], statements made in cases concerning amendment of pleadings are best understood by reference to the circumstances of those cases, even if they are stated in terms of general application.”[25]

  1. Ultimately the discretion is a broad one and its exercise naturally depends on the particular circumstances of the particular applications for amendment.
  2. The nature of the amendments sought to be made and their potential impact upon the course of the proceedings are relevant factors.  True it is that by these applications the applicants seek to add grounds and particulars and make new allegations in the JR applications.  The draft proposed further amended JR applications certainly add complexity to the proceedings. 
  3. However, since the revolution of the law concerning judicial review of administrative decisions began with the introduction of the Commonwealth legislation in the late 1970s, the States and Territories have introduced judicial review legislation which is fairly uniform across the Commonwealth of Australia.  The Judicial Review Act 1991 (Qld) is not exceptional.  It adopts the same basic framework as other judicial review legislation.  The Queensland Act operates so as to give a person “who is aggrieved by a decision”[26] a right to apply to the court “for a statutory order of review”[27] if the applicant can establish one or more of the grounds identified in s 20.
  4. Applications for statutory orders of review are often made against a factual matrix that is either non-contentious or otherwise relatively straight forward.  Often though, the complaints sought to be ventilated upon review are legally multifaceted.[28]  This is a product of the fact that the complaints must be expressed in terms of the statutory grounds and the statutory grounds often overlap.  Quite complicated applications can be produced as an applicant challenges the one decision on several of the grounds specified in s 20. 
  5. Therefore, while there are certainly new grounds sought to be added by amendment here, a question which arises for case management considerations is whether the new grounds widen the dispute so as to inflict prejudice and whether as a result, it is then appropriate to refuse the applications for amendment.
  6. There was no sworn evidence before me read on behalf of the Treasurer which suggests that any prejudice will be suffered by the Treasurer as a result of the amendments.  Affidavits were read on behalf of the Treasurer sworn by Ms Paula Freeleagus,[29] a very experienced government lawyer and an Assistant Crown Solicitor.  In her affidavits, Ms Freeleagus does not suggest that any prejudice will be suffered as a result of the amendments if made.  By this observation, I mean no criticism of Ms Freeleagus: quite the contrary.  The court expects that allegations of prejudice would only be made where it is appropriate to do so.  The fact that a senior lawyer has sworn two affidavits on behalf of the Treasurer and has not suggested prejudice draws me to the inevitable conclusion that there is none.
  7. The applications to amend the JR applications have been made late.  As already observed, the JR applications have been listed for trial.  There is some explanation for the delay.[30]  The trial is still five months away and there is no evidence to suggest that the amendments will cause the loss of the trial dates.
  8. The Treasurer applies for the summary dismissal of ground 2 of the applications for judicial review under s 48 of the Judicial Review Act.  Section 48 provides as follows:

“48.(1)  The Court may stay or dismiss an application under section 20, 21, 22 or 43 or a claim for relief in such an application, if the Court considers that —

  1. it would be inappropriate—
  1. for proceedings in relation to the application or claim to be continued; or 
  1. to grant the application or claim; or
  1. no reasonable basis for the application or claim is disclosed; or
  1. the application or claim is frivolous or vexatious; or
  1. the application or claim is an abuse of the process of the Court.”
  1. As already observed, the application is based on the submission that the ground sought to be stayed or dismissed has no prospects of success.  Certainly, futility is a basis for summary dismissal under s 48.[31]
  2. Mr Kelly QC drew my attention to certain aspects of s 48 of the Judicial Review Act.  In providing a power of summary dismissal, the section refers to “an application under section 20, 21, 22, or 43”, and to “proceedings in relation to the application …”, “no reasonable basis for the application,” “the application … [being] frivolous or vexatious” (emphases added).  Section 48 does not expressly confer a right to summarily dismiss a particular ground within an “application” or “proceeding”.
  3. Ms Brennan QC submitted that there was power to dismiss or strike out a particular ground in an application for judicial review.  Ms Brennan QC referred me to Schirmer v Queensland Health,[32] Remely v O’Shea,[33]Wim Creek Consolidated v Colgan,[34] and various provisions of the Uniform Civil Procedure Rules: r 573(2)(d) and r 658.  Of course, there is also the inherent jurisdiction of the court to stay proceedings which constitute an abuse of process, including proceedings which are obviously doomed to fail.
  4. The ultimate submission put forward by Mr Kelly QC was not that the court did not have jurisdiction to summarily dismiss a particular ground within an application for judicial review.  Indeed, Mr Kelly QC expressly conceded that jurisdiction existed.  His point was more that the terms of s 48 inform the exercise of discretion.  Where the entire proceeding cannot be summarily dismissed, compelling reasons would be needed, he submitted, before exercising the discretion in favour of eliminating a particular ground or grounds, thereby limiting the scope of the applicant’s argument at the hearing of the JR applications.[35]
  5. It is significant in my view that even if ground 2 of the JR applications was struck out, and the amendments refused, the proceeding would not be thereby finalised.  Other grounds would survive. 
  6. However, I accept the submission of Ms Brennan QC that if ground 2 of the JR applications, or any of the proposed amended grounds, were clearly hopeless and doomed to fail, they ought to be disallowed or dismissed, as the case may be.[36]  No broader case management considerations could save them.  If the grounds were so clearly baseless then the prospect of an interlocutory appeal fragmenting the proceedings would be illusory.
  7. However, after hearing extensive argument as to the prospects of success, or otherwise, of the present ground 2, and of the proposed amended grounds, I am not persuaded that any are hopeless and doomed to fail.  I have, naturally enough, formed some preliminary views as to the strength or otherwise of some of the grounds.  However, I have not heard the evidence to be led at the trial and I have not had the benefit of full and final argument.  Any views I have formed are preliminary and based on the material I have seen and the submissions I have heard so far.
  8. It seems to me that it is pointless and indeed probably inappropriate for me to express any preliminary views beyond stating, as I have already done, that I am not prepared to summarily dismiss any of the grounds, whether by striking out ground 2 or refusing to allow the proposed amended grounds to be added. 
  9. It follows then that I allow the applications for amendment and I dismiss the Treasurer’s application to strike out ground 2 of the JR applications.  In making that second order, I do not of course intend to give any endorsement to ground 2.  I merely rule that the applicants ought to be entitled to argue ground 2 on the hearing of the JR applications.
  10. I turn now to the applications for further disclosure.

The application for disclosure of documents

  1. The applicants seek orders in relation to disclosure of documents.  Paragraphs 1, 2 and 3 of the first application (the one concerning the audit periods)[37] are as follows:
  1. Pursuant to rule 223(l)(a) and rule 573(1), the Respondent deliver to the solicitors for the First to Fourth Applicants copies in electronic form (in conformity with Practice Direction 10 of 2011) of the following documents or classes of documents, together with a list of the  documents, on or before 12 January 2018 (or such other date as ordered by the Court):
  1. all documents (including any instrument of delegation) comprising or evidencing the authorisation of the person or persons who made any “original assessment” or “earlier reassessment” as described in s 331B of the Mineral Resources Act 1989 (Qld) for each of the royalty returns for the period from 1 July 2005 to 31 December 2012 for each of the Saraji, Peak Downs, Norwich Park, Gregory, Goonyella and Blackwater coal mines;
  1. all documents comprising or evidencing the workpapers, including any calculations and any underlying source documents, prepared, used or relied upon to determine the reassessed royalty amounts for all audit periods.
  1. Pursuant to rule 374 and rule 573(1), the Respondent deliver an amended list of documents identifying the persons who made notations on the Quarterly Royalty Returns referred to in the list of documents enclosed with Crown Law’s letter dated 14 July 2017.
  1. Pursuant to rule 215, rule 374 and rule 573(1), the Respondent produce for inspection, in native format, pages from the MERLIN database referred to in the list of documents enclosed with Crown Law’s letter dated 14 July 2017.”
  1. The application concerning the post audit periods is identical except for the royalty periods and the mines to which the returns relate.
  2. The orders sought in paragraph 1 are said to be sought under the authority of r 223(1)(a) and r 573(1) of the UCPR.  Rule 223(1)(a) appears in Chapter 7 of the UCPR.  Chapter 7 is the chapter dealing specifically with disclosure.  However, that chapter does not apply to all proceedings before the Court, but only those identified in r 209.  The JR applications do not fall within the category of proceedings identified in r 209 and so Chapter 7 does not apply.  Rule 573(1) though gives power to order the production of the documents and that is a discretionary power. 
  3. The documents which are sought by paragraphs 1(a) and (2) concern the proposed amended ground 2 of the JR applications.[38]   The point that is made in amended ground 2 is that s 331B of the Mineral Resources Act (being the section under which the reassessments were made) only gives power to the Treasurer to reassess an “original assessment or an earlier reassessment”.  Here there has been no “earlier reassessment” and by ground 2 of the JR applications it is alleged that the purported original assessments were, in law, not “original assessments” for a number of reasons; importantly because they were not final assessments[39] and they were made by departmental officers and not the chief executive.[40]  I have already ruled that the grounds sought to be added by amended ground 2 are arguable and the amendments ought to be allowed.  The parties agree that if the amendment is allowed then the documents referred to in paragraph 1(a) of the applications before me ought to be produced.
  4. Ms Hindman QC who was led by Ms Brennan QC for the Treasurer took me to correspondence passing between the parties relevant to the issues raised in paragraph 2 of the application but then conceded that if paragraph 2 of each of the JR applications was amended as sought by the applicants, the documents in paragraph 2 of the applications before me ought to be produced.[41]
  5. Paragraph 1(b) of each of the applications before me seeks disclosure of the workpapers for the reassessments.  The applicants submitted that these documents were relevant to ground 2A of the JR applications.  Paragraph 2A was added by amendment by order of Justice Jackson made on 2 May 2017 and by the present applications is sought to be amended.  Paragraph 2A alleges grounds under s 20(2)(a), s 20(2)(e), s 20(2)(d), s 20(2)(h), and s 23(a), (b), (g) of the Judicial Review Act based upon what was referred to in argument before me in a general way as “miscalculation” of  the royalties.  The Treasurer pointed to the fact that documents had already been produced relating to this ground.  It was also submitted that the applicants’ application for these documents constituted “fishing” and alternatively, the applicants had sufficient disclosure of other documents to enable them to run their case.
  6. I reject the submissions made on behalf of the Treasurer.  The applications do not constitute “fishing”.  The applicants have clearly stated their case on these grounds with a good deal of particularity.  They legitimately now pursue disclosure to assist in proof of the case.  It is also not correct, in my view, that the documents sought by way of further disclosure are unlikely to improve the applicants’ case.  Mr Paynter in his affidavit of 11 December 2017 sets out in some detail a number of issues with the calculations about which the working papers are likely to cast light.  In my view disclosure of the documents ought to be ordered.
  7. Paragraph 3 of the applications seek disclosure of certain documents from the “MERLIN” database.  The parties have, by negotiation, settled their differences concerning the MERLIN documents and that application was not pressed.[42]
  8. Directions were made in both applications for judicial review by Justice Applegarth on 13 October 2017.  By those orders his Honour set a timetable for the exchange of material and for the parties’ preparation for trial.  By paragraph 3 his Honour ordered:

“3.   Representatives of the parties are to meet by 4pm on Friday 3 November 2017 to:

  1. ascertain the extent of the agreement and disagreement in respect of the alleged miscalculation grounds;
  1. record, in writing, the extent of any agreement in respect of the alleged miscalculation grounds;
  1. explore ways in which the extent of any disagreement in respect of the alleged miscalculation grounds might be further reduced;
  1. attempt to agree directions for the resolution of the alleged miscalculation grounds.”
  1. The process laid down by his Honour’s order has not had the desired result in the sense that the parties are still in dispute as to how the miscalculation grounds can be efficiently run.  In a letter written by the respondent to the applicants this was proposed:

“3. To that end, my client proposes that the parties agree the following directions to deal with the alleged miscalculation grounds:

a.   The evidence the parties are permitted to adduce in relation to the alleged miscalculation grounds (ground 2A in the Audit Proceedings and ground 3 in the Post Audit Proceedings) is limited to eight quarters,

b.   In respect of the eight quarters:

i.   four are to be in relation to the Audit Proceedings and four are to be in relation to the Post Audit Proceedings;

ii.   each of the applicants [BHP and Mitsubishi] and the respondent are to nominate two in relation to the Audit Proceedings and two in relation to the Post Audit Proceedings;

iii.   the nominations are to be made in writing and served on the other parties on or before 4pm, Friday 5 January 2018.”[43]

  1. Before me the respondent presses that proposal.[44]
  2. The term “quarters” in the Treasurer’s proposal refers to the periods of royalty returns.  Over the entire period of the reassessments relating to the various mines the subject of the reassessments, there are 157 quarters.  Obviously, the scope of issues to be tried should be narrowed if possible. 
  3. The applicants are open to the prospect of the case being run on sample quarters.  However, they submit that the nomination of sample quarters would be unfair until disclosure of the work papers has been effected.[45]  I accept that submission. 
  4. By the orders of Justice Applegarth the Treasurer is to file affidavits by lay deponents by 2 February 2018.  It was not suggested before me that the Treasurer would be prevented from meeting that deadline by the making of any of the disclosure orders sought by the Applicants.
  5. I intend to order disclosure be made by 22 January 2018 and I intend to review the matter on 9 February 2018.  By that stage the Treasurer’s material will have been filed and the applicants will have had the disclosed documents for the best part of three weeks.  I do not intend to make further orders similar to those made by Justice Applegarth compelling the parties to confer.  However, I expect the parties to do so and to be able to inform me on 9 February as to what steps have been taken to reach some agreement as to how the miscalculation grounds can be conveniently heard.

Costs

  1. During the course of argument, Ms Hindman QC referred me to some correspondence which seemed barely, if at all, relevant to the issues before me.  She informed me however that the correspondence was relevant to the question of costs.  Ms Hindman QC had good reason to be concerned about costs given that the applications all seek costs.  I put to the parties that my preliminary view was that all parties’ costs of the applications ought to be either their costs in the JR applications or reserved and all parties agreed.[46]  No further submissions were made in relation to costs.
  2. All parties’ costs should in my view be reserved.  Considerable correspondence passed between the parties before the applications were filed.  Various points of view were put.  It may well be that when the JR applications are finally determined the unsuccessful party may still be able to establish that the stance taken on these applications was reasonable and that they should therefore not bear the costs of  the applications.  Indeed, there might be grounds to seek the costs of these applications.
  3. In relation to the Applicants’ application made in 11313 of 2015, I make the following orders:
    1. The First to Fourth Applicants have leave to file and serve a further amended application for a statutory order of review in the form appearing at pages 58 to 81 in the bundle of exhibits attached to the affidavit of John Hugh Paynter sworn 17 November 2017, on or before 12 January 2018.
    2. The Respondent deliver to the solicitors for the First to Fourth Applicants and the solicitors for the Fifth to Eighth Applicants copies in electronic form (in conformity with Practice Direction 10 of 2011) of the following documents or classes of documents, together with a list of the  documents, on or before 22 January 2018:
      1. all documents (including any instrument of delegation) comprising or evidencing the authorisation of the person or persons who made any “original assessment” or “earlier reassessment” as described in s 331B of the Mineral Resources Act 1989 (Qld) for each of the royalty returns for the period from 1 July 2005 to 31 December 2012 for each of the Saraji, Peak Downs, Norwich Park, Gregory, Goonyella and Blackwater coal mines;
      2. all documents comprising or evidencing the workpapers, including any calculations and any underlying source documents, prepared, used or relied upon to determine the reassessed royalty amounts for all audit periods.
    3. The Respondent deliver to the solicitors for the First to Fourth Applicants and to the solicitors for the Fifth to Eighth Applicants an amended list of documents identifying the persons who made notations on the Quarterly Royalty Returns referred to in the list of documents enclosed with Crown Law’s letter dated 14 July 2017 by 12 January 2018.
    4. All parties’ costs of the application are reserved.
    5. The application for a statutory order of review be listed for mention before Justice Davis on 9 February 2018.
  4. In relation to the Applicants’ application made in 2371 of 2016, I make the following orders:
    1. The First to Fourth Applicants have leave to file and serve a further amended application for a statutory order of review in the form appearing at pages 82 to 104 in the bundle of exhibits attached to the affidavit of John Hugh Paynter sworn 17 November 2017, on or before 12 January 2018.
    2. The Respondent deliver to the solicitors for the First to Fourth Applicants and the solicitors for the Fifth to Eighth Applicants copies in electronic form (in conformity with Practice Direction 10 of 2011) of the following documents or classes of documents, together with a list of the  documents, on or before 22 January 2018:
      1. all documents (including any instrument of delegation) comprising or evidencing the authorisation of the person or persons who made any “original assessment” or “earlier reassessment” as described in s 331B of the Mineral Resources Act 1989 (Qld) for each of the royalty returns for the period from 1 January 2013 to 30 September 2015 for each of the Saraji, Peak Downs, Gregory, Goonyella, Blackwater, Daunia & Red Mountain, and Caval Ridge coal mines;
      2. all documents comprising or evidencing the workpapers, including any calculations and any underlying source documents, prepared, used or relied upon to determine the reassessed royalty amounts for all post-audit periods.
    3. The Respondent deliver to the solicitors for the First to Fourth Applicants and to the solicitors for the Fifth to Eighth Applicants an amended list of documents identifying the persons who made notations on the Quarterly Royalty Returns referred to in the list of documents enclosed with Crown Law’s letter dated 14 July 2017 by 12 January 2018.
    4. All parties’ costs of the application are reserved.
    5. The application for a statutory order of review be listed for mention before Justice Davis on 9 February 2018.
  5. In relation to the Respondent’s (Treasurer’s) application made in both 11313 of 2015 and 2371 of 2010, I make the following orders:
    1. The application is dismissed.
    2. All parties’ costs of the application are reserved.

Footnotes

[1]  Amended application filed 13 July 2017, 11313/15 CFI 35; Amended application filed 13 July 2017, 2371/16 CFI 30.

[2]  Formally the Treasurer and Minister for Trade and Investment at the time of filing of the originating application in 11313/15.  Formally the Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sports at the time of filing the originating application in 2371/16. 

[3]  11313/15 CFI 32; 2371/16 CFI 27. 

[4]  Application filed 17 November 2017, 11313/15 CFI 38; Application filed 20 November 2017, 2371/16 CFI 32; Application filed 4 December 2017, 2371/16 CFI 33.

[5]  The first to fourth applicants.

[6]  The fifth to eighth applicants. 

[7]  Orders of Applegarth J made 13 October 2017, 11313/15 CFI 37; Orders of Applegarth J made 13 October 2017, 2371/16 CFI 31.

[8]  Affidavit of Paula Penelope Freeleagus, 1 December 2017, ex PPF-01.

[9]  11313/15.

[10]  2371/16.

[11]  Transcript of the hearing, 1-31.

[12]  Exhibit JHP-3, 58–104.

[13]  Transcript of the hearing, 1-29, 1-32.  However, any appeal would only be by leave: Judicial Review Act 1991 (Qld) s 48(5).

[14]  Transcript of the hearing, 1-38.

[15]  Judgment of Jackson J, 2 May 2017, 3.

[16]  See r 5.

[17]  (2009) 239 CLR 175.

[18]  (1997) 189 CLR 146.

[19]  Para [102].

[20]  Para [102].

[21]  Para [103].

[22]  Para [102].

[23] Birla Mt Gordon Pty Ltd v Miccon Hire Pty Ltd [2013] QCA 363, [88].

[24]  [2010] FCAFC 101; (2010) 187 FCR 261.

[25]  Para [51].

[26]  Section 20.

[27]  Part 3: as opposed to an application for review under Part 5.  

[28] FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754 at [19].

[29]  Affidavit of Paula Penelope Freeleagus, sworn 1 December 2017; Affidavit of Paula Penelope Freeleagus, sworn 12 December 2017.

[30]  Affidavit of John Hugh Paynter, sworn 11 December 2017, paragraph 2 and ex JHP-4.

[31] Purcell v Venardos [1996] 1 Qd R 310 at 313.

[32]  [2005] QSC 353.  

[33]  [2007] QSC 225.

[34]  (1989) 25 FCR 50.

[35]  Transcript of the hearing, 1-70–1-71.

[36] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-9; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118, [24], [60].

[37]  Application filed 17 November 2017, 11313/15 CFI 38.

[38]  Affidavit of John Hugh Paynter, sworn 17 November 2017, ex JHP-3, 64–66.

[39]  Amended ground 2(d)(i).

[40]  Amended ground 2(d)(ii).

[41]  T 1-59 l 40–T 1-60 l 45.

[42]  T 1-31 ll 25-40; T 1-58–1-59.

[43]  Affidavit of Paula Penelope Freeleagus, sworn 12 December 2017, 125–6, ex PPF-20A.

[44]  Respondent’s written submission paragraph 72

[45]  Reply submissions of the first to fourth applicants paragraphs 44-47.

[46] Transcript of the hearing, 1-59.

Editorial Notes

  • Published Case Name:

    BHP Coal Pty Ltd & Ors v Treasurer and Minister for Trade and Investment; BHP Coal Pty Ltd & Ors v Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sports

  • Shortened Case Name:

    BHP Coal Pty Ltd v Treasurer and Minister for Trade and Investment

  • MNC:

    [2017] QSC 326

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    20 Dec 2017

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 326 20 Dec 2017 -

Appeal Status

No Status