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

 

[2018] QSC 66

SUPREME COURT OF QUEENSLAND

CITATION:

BHP Coal Pty Ltd & Ors v Treasurer & Minister for Trade & Investment; BHP Coal Pty Ltd & Ors v Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sports [2018] QSC 66

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:

29 March 2018

DELIVERED AT:

Brisbane

HEARING DATE:

28 March 2018

JUDGE:

Davis J

ORDER:

The orders of the Court are as set out in the Schedule attached to these reasons.

CATCHWORDS:

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 orders enforcing disclosure orders from previous interlocutory proceedings – where the applicants seek more specific disclosure orders – whether the disclosure should be ordered in favour of the applicants

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS – SEPARATE DECISION OR DETERMINATION – where an application for judicial review relates to a large number of discrete periods – where those periods can be reviewed separately – where the parties are agreed that the trial should relate to a finite number of discrete periods – whether the periods not agreed upon by the parties should be determined at the upcoming trial

Judicial Review Act 1991 (Qld) s 20, s 24

Uniform Civil Procedure Rules 1999 (Qld) r 483(1)

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, cited

Attorney-General (NSW) v Quin (1990) 170 CLR 1, cited

BHP Coal Pty Ltd & Ors v Treasurer [2017] QSC 326

Carragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, cited

Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, cited

Re Multiplex Constructions Pty Ltd [1999] 1 Qd R 287, cited

Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 240 FCR 276, cited

COUNSEL:

T Bradley QC and S Cooper for the first to fourth 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. Two applications for statutory orders of review[1] (the applications for judicial review) have been filed which seek to challenge decisions made by the Treasurer reassessing the applicants’ liability to royalties under the Mineral Resources Act 1989 (Qld).  For convenience, I will refer collectively to the applicants for judicial review as the BHP interests and the respondent to the applications for judicial review as the Treasurer. 
  2. The applications for judicial review are listed to be heard by me over a five day period commencing 28 May 2018.  The proceeding in application 11313 of 2015 has been referred to by the parties as the Audit Proceeding, and the proceeding in application 2371 of 2016 has been referred to as the Post-Audit Proceeding.  The reasons behind this are explained in an earlier judgment.[2]For convenience, I will refer to the applications in this style.
  3. Interlocutory applications were heard by me on 12 December 2017.  By those applications, the BHP interests sought leave to amend the two applications for judicial review and also sought disclosure of documents.  On 20 December 2017, I delivered judgment on those applications.[3]  I gave leave to the BHP interests to amend the applications for judicial review and I made orders requiring the Treasurer to make further disclosure of documents.  I ordered that the applications for judicial review be mentioned before me on 9 February 2018.
  4. Before turning to record what has occurred since 20 December 2017 it is necessary to make reference to one of the grounds that was added by force of my orders of 20 December 2017.  Ground 2A in the Audit Proceeding, which is in equivalent terms to ground 3 in the Post-Audit Proceeding, is as follows:

“In respect of the decisions in (a), (b), (c) and (d) above:

  1. pursuant to ss 20(2)(e) and 23(a), (b) and (g) of the JRA, the making of the decisions by the Respondent was an improper exercise of the power conferred by the enactment under which it was purported to be made; and
  1. pursuant to s 20(2)(d) of the JRA, the making of the decisions by the Respondent was not authorised by the enactment under which they were purported to be made;

(ba) pursuant to s 20(2)(h) of the JRA, there was no evidence or other material to justify the making of the decisions; and

(bb)  pursuant to s 20(2)(a) of the JRA, there was a breach of the rules of natural justice,

because in making those decisions the Respondent:

  1. took into account an irrelevant consideration, namely the dates of sales made by Mitsubishi and the tonnages sold by Mitsubishi;
  1. failed to take into account a relevant consideration, namely the dates of sales made by the First to Fourth Applicants and the tonnages sold by the First to Fourth Applicants;
  1. took into account an irrelevant consideration, namely:
  1. incorrect export revenue and domestic revenue figures reports and sales registers provided by the First to Fourth Applicants;
  1. incorrect tonnages supplied by the First to Fourth Applicants, being figures that are not the correct tonnages from the revenue reports and sales registers provided by the First to Fourth Applicants;
  1. royalties payable by the First to Fourth Applicants to private persons in relation to the Gregory Crinum mine;
  1. failed to take into account a relevant consideration, namely:
  1. the correct export revenue and domestic revenue figures set out in the revenue reports and sale registers provided by the First to Fourth Applicants;
  1. the correct tonnages from the revenue reports and sales registers provided by the First to Fourth Applicants;

(fa)  despite having made a finding in the Audit Exit Letter that the gross value in respect of each sale of coal made to BMAG was a value equal to the sale price obtained by Mitsubishi in relation to each corresponding sale of coal (being coal transported on the same ship as the BMAG coal to the same ultimate end customer, demanded that the First to Fourth Applicants pay royalties in an amount greater than that which ought to have been assessed as payable if he had calculated royalties at the prescribed rate on the value of the coal which he purported to have adopted;

(fb) did not notify the First to Fourth Applicants than any adjustment would be made to the calculation of royalties pursuant to the finding in the Audit Exit Letter by reason of:

  1. unassigned sales;
  1. rebates;
  1. demurrage/despatch;
  1. transfers and classifications;
  1. domestic sales adjustments; or
  1. royalties payable by the First to Fourth Applicants to private persons in relation to the Gregory Crinum mine,

and did not provide the First to Fourth Applicants with an opportunity, or alternatively a proper opportunity, to respond to those matters before issuing the Reassessments;

  1. demanded that the First to Fourth Applicants pay royalties in an amount greater than that which he was authorised to demand under the Act;

(ga) made that demand when there was no evidence to support a finding that the First to Fourth Applicants were liable to pay royalties in the amount he demanded;

  1. exercised his power in a way that is so unreasonable that no reasonable person could so exercise the power, namely by taking into account the irrelevant considerations set out in sub-paragraph (e) above.”
  1. The reference in each of ground 2A (Audit Proceeding) and ground 3 (Post-Audit Proceeding) to “the decisions in (a), (b), (c), and (d)” is a reference to some of the decisions of the Treasurer which are challenged.  It is unnecessary to consider the terms of those decisions in any detail.  Suffice it to say that the decisions referred to in ground 2A in the Audit Proceeding and ground 3 in the Post-Audit Proceeding are the decisions which effect the reassessment of the royalties.
  2. On 20 December 2017 I made orders for disclosure of documents relevant to ground 2A in the Audit Proceeding and ground 3 in the Post-Audit Proceeding.  In the Post-Audit Proceeding, that order was, relevantly here:
  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 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. An order to the same effect was made in the Audit Proceeding.
  2. No appeal against any of the orders made on 20 December 2017 has been filed.
  3. Ground 2A in the Audit Proceeding and ground 3 in the Post-Audit Proceeding concern what can be conveniently described as a challenge to the way in which reassessed royalties were calculated[4] (the miscalculation grounds).  The royalty returns are lodged quarterly in relation to each relevant coal mine.  Assessments issued in relation to each royalty return in respect of each mine.  The result is that there are 137[5] assessments involved in the present dispute.  The parties sensibly seek to present this part of the case by having the Court examine not all 137 assessments, but a sample of assessments.  That is obviously desirable, and in my judgment of 20 December 2017, I encouraged the parties to narrow the issues in that way if possible.[6]

The events since 20 December 2017

  1. The two applications for judicial review were reviewed by me on 9 February 2018.  On that day I made various orders designed to progress the applications to hearing.  The terms of those orders are not particularly relevant to the present dispute.  However, at the review on 9 February 2018 it became evident that there was an ongoing dispute between the parties about disclosure and that difficulties were being encountered in reaching agreement as to the selection of sample assessments for the purposes of the miscalculation grounds.  I ordered that the matter be listed for further review on 13 March 2018.
  2. I reviewed the applications on 13 March 2018.  On that day, it was clear that the dispute concerning disclosure of the documents had not been resolved.  The Treasurer had previously provided the BHP interests with two spreadsheets which listed the reassessments.  In response to the disclosure orders made on 20 December 2017, the Treasurer disclosed two further documents being spreadsheets evidencing the calculation of the reassessments.  These appeared as documents 1.284 and 1.285 in a list of documents dated 22 January 2018.  These are significant documents, as I later explain.  Ms Hindman QC (being led by Ms Brennan QC for the Treasurer) informed me that a decision had been made that they were the only documents that were considered to fall within the disclosure orders made on 20 December 2017. 
  3. It was also evident on 13 March 2018 that the parties were still having difficulty in settling upon sample assessments upon which the Court would consider the miscalculation grounds.
  4. On 13 March 2018, I made a series of orders.  Relevantly to the identification of  the sample quarters and disclosure I ordered as follows:

“Sample quarters

  1. By 4.00pm on 16 March 2018, the Applicants are to make a proposal concerning the conduct of the proceeding as it concerns the alleged miscalculation grounds.
  1. The parties are to use their best endeavours to seek to agree upon a proposal concerning the conduct of the proceeding as it concerns the alleged miscalculation grounds by 4.00pm on 23 March 2018.
  1. If, by 4.00pm on 23 March 2018, the parties have not agreed a proposal concerning the conduct of the proceeding as it concerns the alleged miscalculation grounds, the proceeding is listed for the making of orders and directions regarding the conduct of the proceeding as it concerns the alleged miscalculation grounds at 10.00am on 28 March 2018.

Disclosure

  1. By 4.00pm on Friday 16 March 2018, the Respondent is to deliver an affidavit by the solicitor responsible for the preparation of the Respondent’s case explaining what attempts have been made to comply with order 2(b) made by Davis J on 20 December 2017, including identifying categories of documents in the Respondent’s possession or under the respondent’s control which were considered for disclosure and the reasons for disclosing or not disclosing the documents.”
  1. On that day, I indicated to the parties that I was not listed to sit in the week commencing 26 March 2018 and if the parties could not reach agreement on these two outstanding issues, I expected the parties to list the matter before me for further argument on 28 March 2018.
  2. On 16 March 2018, an affidavit of Paula Penelope Freeleagus, Assistant Crown Solicitor, was filed in compliance with order 10 made on 13 March 2018.  Ms Freeleagus swore a further affidavit on 28 March 2018.
  3. The parties were unable to reach agreement and the matter was listed before me on 28 March 2018.  I heard argument on these two outstanding matters.  This is the judgment on the matters argued.

The disclosure dispute

  1. It is not necessary to descend to detail about the arguments that were raised at the hearing before me on 12 December 2017.  However, it is necessary to identify the basis of the dispute in relation to disclosure and how I resolved it.
  2. The Treasurer’s position was that the miscalculation grounds were an attempt to involve the Court in an impermissible merits review of the reassessments.  Of course, the jurisdiction of the Court to set aside the decisions is only enlivened if a ground of review is made out; the Court does not embark upon a merits review.[7]  Further there are limitations upon the extent to which an applicant for judicial review can challenge the facts upon which a decision is based.[8]
  3. The structure of the Judicial Review Act, relevantly here is this; (i) grounds are identified by s 20; and (ii) the scope of some grounds is set by later sections, here relevantly sections 23 and 24.
  4. The miscalculation grounds rely upon the ground identified in s 20(2)(a) (breach of the rules of natural justice); the ground identified in s 20(2)(d) (that the decision was not authorised by the enactment under which it was made); the ground identified in s 20(2)(e) (that the making of the decision was an improper exercise of power) as explained by sections 23(a) (taking into account an irrelevant consideration), 23(b) (failure to take a relevant consideration into account), and 23(g) (Wednesbury unreasonableness[9]); and the ground identified in s 20(2)(h) (no evidence or other material to justify the making of the decision), which is limited by s 24.  The miscalculation grounds, with some particularity, identify the specific complaints made in relation to each of those grounds identified in s 20 of the Judicial Review Act.
  5. In his affidavit of 11 December 2017,[10] the solicitor for the first to fourth Applicants, John Hugh Paynter, described in detail how he proposed to use the documents which he sought from the Treasurer.  It can be seen from that affidavit that the exercise to be undertaken was to ascertain what information was, and what information was not, taken into account in the calculation of the reassessments.  Such an exercise is not an impermissible merits review.  The exercise is squarely aimed at attempting to prove the grounds that are alleged and particularised in the miscalculation grounds.
  6. On 20 December 2017 I ruled in favour of the BHP interests’ application for disclosure and in doing so gave reasons in these terms:

“[52] 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.

[53] 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.”

  1. The documents ordered to be produced were these:

“(b)  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.”

The present dispute about disclosure

  1. As already observed, pursuant to the order for further disclosure made on 20 December 2017, the Treasurer produced two spreadsheets.  These are, in reality, two workbooks.  The workbooks contain some 428 individual spreadsheets.  The workbooks demonstrate how the calculations were performed and, it can fairly be said, contain a large amount of information.
  2. There is dispute as to the scope of the disclosure order made on 20 December 2017.  Ms Freeleagus refers in her affidavit of 16 March 2018 to my order of 20 December 2017, various passages of Mr Paynter’s affidavit of 11 December 2017 and some earlier steps in the proceedings.    Ms Freeleagus summarised her view as to the scope of the further disclosure order as:

“Accordingly, I had understood the reference in orders 2(b) to “workpapers, including any calculations and any underlying source documents” to be directed to documents which demonstrate how mathematically the reassessments were calculated.”[11]

  1. The disclosure order of 20 December 2017 is not as narrow as Ms Freeleagus has contended.  What the BHP interests sought, and achieved, was an order giving access to documents which were relevant to the miscalculation grounds.  The reference in the order to “workpapers, including any calculations and any underlying source documents, prepared, used or relied upon to determine [the reassessments]” includes documents which justify (or not) the reassessment, so there is no limitation merely to those documents referable to the mathematical calculation itself.
  2. It is obvious, though, that the Treasurer and those advising the Treasurer have made bona fide efforts to comply with the orders.  They just misunderstood them.
  3. In the course of argument, I asked Mr Bradley QC who appeared for the first to fourth applicants to tell me what his current specific complaints are.  They comes down to this:
  1. In the workbooks there are figures that are “hard coded” which means that when the relevant spreadsheet is opened there is no trail of information from that figure.  In other words, it is impossible from the workbooks to discern the workings which led to that particular figure.[12]  It seems that the figures in the workbooks were calculated by Derek Tang, Victor Cao or Eimear Moran.
  1. The Treasurer has limited disclosure to those documents falling with the disclosure order which were “prepared, used or relied upon” by the actual decision-maker, a Mr Jones.[13]  Mr Bradley QC submits that it is not only documents which Mr Jones “prepared, used or relied upon” in coming to his decision which are relevant to the grounds in the applications for judicial review.  Mr Bradley QC submits that the existence of documents which were not taken into account by Mr Jones are relevant to grounds alleged in the applications for judicial review, especially the grounds alleging a failure to take into account relevant considerations and Wednesbury unreasonableness.  Mr Bradley QC submitted that this opens consideration of what was done by Mr Tang, Mr Cao and Ms Moran.[14]
  1. The orders sought by the BHP interests are in these terms:

 1. The Respondent deliver to the solicitors for the First to Fourth Applicants and the solicitors for the Fifth to Eight Applicant copies in electronic form (in conformity with Practice Direction 10 of 2011) of all documents comprising or evidencing the workpapers that were:

  1. prepared or used by Derek Tang, Victor Cao or Eimear Moran in the audit of royalty amounts payable by the Applicants for all periods for which there are reassessments the subject of these proceedings; or
  1. prepared or used (directly or indirectly) in the preparation of the working papers disclosed by the Respondent at items 1.284 and 1.285 of the second amended list of documents dated 22 January 2018;

which have not been disclosed in these proceedings by the Respondent prior to the date of this Order.

  1. For the avoidance of doubt, in paragraph 1 above “workpapers” include any file notes, internal emails, spreadsheets, calculations and any underlying source documents.”[15]
  1. Ms Brennan QC, for the Treasurer, addressed me on the disclosure issue.  Ms Brennan QC submitted that she understood that there were no further documents in existence which fall within the further disclosure order made on 20 December 2017.[16]  She relied upon Ms Freeleagus’ affidavit sworn on 28 March 2018.[17]  There are passages, though, in Ms Freeleagus’ affidavit of 16 March 2018 which suggest that there are further documents falling within the order.[18]  Any apparent inconsistency is explained by the view Ms Freeleagus formed as to the scope of the further disclosure order.
  2. In any event, it is not clear to me what, if any, further documents are in existence falling within the further disclosure order.
  3. Obviously, if there are no documents, then there is nothing further to produce.  However, the dispute about the documents must be concluded and that can only occur either by production of the documents if they exist or by the swearing and filing of an affidavit clearly deposing to the fact that there are no further documents within the scope of the order.  Therefore, I intend to make orders for the filing of a further affidavit deposing to the existence or otherwise of further documents, and for the production of such documents as exist.
  4. Ms Brennan QC, for the Treasurer, made submissions on the form of the orders proposed by Mr Bradley QC.  Ms Brennan QC submitted that words “directly or indirectly” in proposed order 1(b) were apt to cause confusion, and unnecessarily widened the scope of the additional disclosure.  Ms Brennan QC said she was otherwise content with proposed order 1(b),[19] although this concession was clearly not an abandonment of her primary position, which was that the further disclosure order only included documents relevant to the mathematical calculation of the reassessments.  Ms Brennan QC opposed orders in terms of paragraph 1(a) of the draft provided by Mr Bradley QC.
  5. The inclusion of the words “directly or indirectly” in paragraph order 1(b) is apt to add nothing but confusion and should be omitted.
  6. Mr Tang, Mr Cao and Ms Moran prepared the electronic workbooks.  Mr Bradley QC’s submission in support of proposed order 1(a) was that there may be documents which are not “prepared or used” in the preparation of the working papers but were referred to during the audit and, presumably, disregarded; in other words, not then used.  This is relevant to, at least, the grounds raising alleged failure to take into account relevant considerations.
  7. Disclosure in proceedings under the Judicial Review Act is not as of right.  I am concerned that an order in terms of proposed order 1(a) may lead to the disclosure of all manner of documents which are irrelevant to the applications for judicial review.  For example, “internal emails”[20] which are created for purely administrative reasons, such as arranging meetings, would be documents “prepared … in the audit”.
  8. What is sought to be caught are (i) documents, the information in which was used to compile the workbooks, and (ii) documents, the information in which was available during the audit but which did not find its way into the workbooks.  I will not make an order in terms of proposed order 1(a), but will make an order otherwise in terms of the proposed order, with the exception that the paragraph which is now proposed under 1(b)  will read:

“prepared, used, considered or referred to by any person or available to any person in the preparation of the working papers disclosed by the Respondent at items 1.284 and 1.285 of the second amended list of documents dated 22 January 2018…”

  1. This order should catch the relevant documents, as the product of the audit was the workbooks.  An inference can be drawn then that all relevant documents were available to the authors of the workbooks.
  2. Given the history of these applications, I make it clear that what is intended is that the Treasurer provides all documents which contain any information that was before Messrs Jones, Tang, Cao and/or Ms Moran or available to them, and which has either found its way into the work books, or has not.

The sample quarters 

  1. The BHP interests have identified 13 sample quarters, which the Treasurer agrees are appropriate for the Court to consider.  The Treasurer has identified a further three sample quarters to add to that 13 to arrive at a total sample of 16.[21]  The BHP interests complain that they do not understand the necessity for the further three quarters as they are said by the Treasurer to relate to four issues which the BHP interests say that they also do not understand as relevant.[22]  The BHP interests point to a letter dated 23 March 2018 which has been sent to the Treasurer asking for an explanation of the significance of the four extra issues and say they have received no reply.[23]  Ms Hindman QC submitted to me that the four extra issues are not in reality new issues at all and the significance of them has been explained in correspondence and written submissions.[24]  Mr Bradley QC submitted that depending upon the significance of the four extra issues, the BHP interests might wish to submit further sample quarters for the Court’s consideration.[25]  Mr Bradley QC told me, though, that he could, given a short time, identify further sample quarters which would be relevant to the issues as he presently understands them.  There would only be a few of these, perhaps three or four.[26] 
  2. Both parties have been attempting to identify the appropriate sample quarters.  They are agreed in relation to 13 and if the Treasurer wishes the Court to rule in relation to an extra three, then I will do so.  The BHP interests ought to be given the opportunity to nominate further sample quarters and I will allow them until 7 April 2018 to do so.  Whether the Treasurer engages in further correspondence with the BHP interests as to the significance of the extra sample quarters added by the Treasurer is a matter for the Treasurer.  However, as Ms Hindman QC conceded when I put it to her, the significance of the additional sample quarters will have to be explained by the Treasurer in the statement of facts, issues and contentions to be filed by the Treasurer on 13 April 2018.[27]  If, when the Treasurer’s statement of facts, issues and contentions is filed, the BHP interests are taken by surprise as to the significance of the extra three sample quarters, the BHP interests may perhaps seek orders to avoid any prejudice.  I can imagine that on any such application any failure of the Treasurer to respond to the letter of 23 March may become relevant. 
  3. The parties are in negotiations attempting to agree the terms upon which the finding by the Court on the sample quarters binds the parties in relation to other quarters. The Treasurer refuses to agree that findings on the sample quarters will bind the Treasurer on others.  I can see reasons why the Treasurer might legitimately take this stance at this time.  It is unnecessary to go into those reasons.  Hopefully the negotiations continue and hopefully they are fruitful.  However, in the meantime I intend to order that the miscalculation grounds, as they relate to the quarters that are not sample quarters, be tried separately.  The jurisdiction to make such an order is found in r 483(1) of the Uniform Civil Procedure Rules.  While there are some dangers in ordering the trial of separate issues,[28] such orders can and should be made where possible and convenient to do so.[29]
  4. Here it is appropriate to order the separate determination of the issues relevant to the miscalculation grounds of the quarters that are not sample quarters.  There is no reason why the sample quarters cannot be considered separately on the dates allotted for trial.  Hopefully, once findings are made in relation to the sample quarters the parties will be able to apply those rulings by agreement to the other quarters.  If they are unable to do so, then there will need to be a further hearing in relation to those further quarters.  If that is necessary, then there will obviously be costs ramifications for the unsuccessful party in any second trial.  My sense of it is that rulings as to the sample quarters are more likely than not to lead to a resolution of the dispute concerning the miscalculation grounds on all quarters.

Costs

  1. Each party was content that the costs of this hearing be reserved.[30]  This is appropriate and I order accordingly.
  2. The orders of the Court are as set out in the Schedule attached to these reasons.

SUPREME COURT OF QUEENSLAND

REGISTRY:  Brisbane

NUMBER: 11313 of 2015

Applicants:

BHP COAL PTY LTD (ABN 83 010 595 721) & ORS 

AND

Respondent:

TREASURER AND MINISTER FOR TRADE & INVESTMENT

REGISTRY:  Brisbane

NUMBER: 2371 of 2016

Applicants:

BHP COAL PTY LTD (ABN 83 010 595 721) & ORS 

AND

Respondent:

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

ORDER

Before:  Davis J

Date:  29 March 2018

Initiating document:   Applications filed 11 November 2015 and 7 March 2016

THE ORDER OF THE COURT IS THAT:

  1. The hearing of ground 2A in application 11313 of 2015 and ground 3 in application 2371 of 2016 commencing 28 May 2018 be limited to the following quarters and the quarters nominated by the Applicants pursuant to order 2.
  1. Goonyella mine September 2009 quarter;
  2. Blackwater mine June 2009 quarter (transaction April 2009);
  3. Goonyella mine September 2005 quarter;
  4. Gregory Crinum mine September 2009 quarter;
  5. Blackwater mine March 2013 quarter;
  6. Goonyella mine June 2007 quarter;
  7. Goonyella mine September 2007 quarter;
  8. Goonyella mine June 2008 quarter;
  9. Goonyella mine September 2008 quarter;
  10. Blackwater mine March 2006 quarter;
  11. Blackwater mine June 2006 quarter;
  12. Gregory Crinum mine June 2010 quarter;
  13. Gregory Crinum mine September 2010 quarter;
  14. Goonyella mine June 2009 quarter;
  15. Peak Downs mine December 2007 quarter; and
  16. Saraji mine June 2006 quarter.
  1. The Applicants identify any further quarters to be included in the list in order 1 by written notice to the Respondent on or before 4 pm on 5 April 2018.
  1. A copy of any written notice be exhibited to an affidavit sworn by a solicitor for the Applicants (or any of them) depositing to the giving of the notice, and the affidavit is to be filed and served by 9 April 2018.
  1. The hearing of ground 2A in application 11313 of 2015 and ground 3 in application 2371 of 2016 in respect of all quarters not listed in order 1, or added pursuant to order 2, proceed as a separate question after the determination of all other issues raised by applications 11313 of 2015 and 2371 of 2016.
  1. The Respondent deliver to the solicitors for the First to Fourth Applicants and the solicitors for the Fifth to Eighth Applicants by 4 pm on 13 April 2018 an affidavit sworn by a solicitor acting for the Respondent deposing to:
  1. the investigations undertaken to identify any documents which are to be delivered pursuant to order 6; and
  1. a list of such documents to be disclosed pursuant to order 6.
  1. The Respondent deliver to the solicitors for the First to Fourth Applicants and the solicitors for the Fifth to Eighth Applicants by 4 pm on 13 April 2018 copies in electronic form (in conformity with Practice Direction 10 of 2011) of all documents comprising or evidencing the workpapers that were prepared, used, considered or referred to by any person or available to any person in the preparation of the working papers disclosed by the Respondent at items 1.284 and 1.285 of the second amended list of documents dated 22 January 2018 which have not been disclosed in these proceedings by the Respondent prior to the date of this Order.
  1. For the avoidance of doubt, in paragraph 6 above “workpapers” include any file notes, internal emails, spreadsheets, calculations and any underlying source documents.
  1. Each party shall have liberty to apply to Davis J.
  1. Each party’s costs are reserved.

Footnotes

[1] Under Part 3 of the Judicial Review Act 1991 (Qld).

[2] BHP Coal Pty Ltd & Ors v Treasurer & Minister for Trade & Investment; BHP Coal Pty Ltd & Ors v Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sports [2017] QSC 326 (“BHP Coal Pty Ltd & Ors v Treasurer”) at [9]–[11].

[3] BHP Coal Pty Ltd & Ors v Treasurer [2017] QSC 326.

[4] Obviously taking into account certain information.

[5] In earlier submissions made in earlier interlocutory applications, it was thought that there were 157 quarters; see BHP Coal Ltd & Ors v Treasurer [2017] QSC 326 at [58].

[6] BHP Coal Pty Ltd & Ors v Treasurer [2017] QSC 326 at [56] and [58].

[7] Judicial Review Act 1991 (Qld) s 20.

[8] Judicial Review Act 1991 (Qld) s 24; and see Carragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222.

[9] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Attorney-General (NSW) v Quin (1990) 170 CLR 1; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.

[10]Affidavit of John Hugh Paynter, sworn 11 December 2017.

[11]Affidavit of Penelope Paula Freeleagus, sworn 26 March 2018 at [7].

[12]Transcript at 1-20 ll 20–40.

[13]Affidavit of Penelope Paula Freeleagus, sworn 16 March 2018 at [31].

[14]Transcript at 1-22 to 1-23, 1-34.

[15]Draft order, exhibit 5 before me.

[16]Transcript at 1-26.

[17]Affidavit of Paula Penelope Freeleagus, sworn 28 March 2018 at [3(v)].

[18]Affidavit of Paula Penelope Freeleagus, sworn 16 March 2018 at [31].

[19]Transcript at 1-37 ll 19–20.

[20]In proposed order 2.

[21]Transcript at 1-2 ll 40–50.

[22]At 1-2 ll 1–10.

[23]Affidavit of John Hugh Paynter, sworn 26 March 2018 at [20], [21], ex JHP-8 at 40–46.

[24]Transcript at 1-9 to 1-12.

[25]At 1-5 l 10.

[26]At 1-14 l 35 to 1-15 l 30.

[27]At 1-12 ll 10–20.

[28]Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 240 FCR 276.

[29]Re Multiplex Constructions Pty Ltd [1999] 1 Qd R 287.

[30]Transcript at 1-38.

Editorial Notes

  • Published Case Name:

    BHP Coal Pty Ltd & Ors v Treasurer & Minister for Trade & 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:

    [2018] QSC 66

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    29 Mar 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 66 29 Mar 2018 Application concerning scope of judicial review applications and further disclosure: Davis J.

Appeal Status

No Status