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  • Unreported Judgment

Cement Australia (Exploration) Pty Ltd v East End Mine Action Group Inc

 

[2020] QLC 25

LAND COURT OF QUEENSLAND

CITATION:

Cement Australia (Exploration) Pty Ltd & Anor v East EndMine Action Group Inc & Anor (No 2) [2020] QLC 25

PARTIES:

Cement Australia (Exploration) Pty Ltd

ACN 009 800 355

(applicant)

Cement Australia (Queensland) Pty Ltd

ACN 009 658 520

(applicant)

v

East End Mine Action Group Inc

(active objector)

Maurice James Elliott, Frank Lenz, Anne Patricia Kelly, Robert Geaney, Ross Rideout, Paula Rideout

Theresa May Derrington, Tom Chapman, Lynne

Chapman, Philip Mann, Claire Mann, Brent Lashford,

Gladstone Regional Council

(non-active objectors)

and

Chief Executive, Department of Environment and

Science

(statutory party)

FILE NOs:

MRA241-18 & EPA242-18

DIVISION:

General Division

PROCEEDING:

Objections to application for environmental authority and

mining lease

DELIVERED ON:

3 July 2020

DELIVERED AT:

Brisbane

HEARD ON:

24 June 2020

HEARD AT:

Brisbane

MEMBER:

JR McNamara

ORDERS:

  1. The listing of the matter for hearing for 10 days commencing 20 July 2020 in Gladstone is confirmed.
  2. The application by Cement Australia to strike out in whole the reports of Professor Roberts and Mr Leggate is denied. If Professor Roberts and Mr Leggate appear at the hearing their evidence will be treated as lay evidence unless some greater clarity regarding the quality of their evidence emerges at that time.
  3. The application by EEMAG to conduct a demonstration during the course of the site inspection is denied.
  4. Any further request for review of this matter must be brought in accordance with Order 8 made 24 June 2020.

CATCHWORDS:

CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURE – where the matter was set down for hearing – where multiple issues were returnable in a hearing review – where an application was made to strike out expert evidence – whether witnesses could give expert evidence on the nominated topics – where the application was denied

CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURE – where an application was made to conduct a demonstration during a site inspection – where the application was denied

Mineral Resources Act 1989 s 268, s 269(4)

Environmental Protection Act 1994 s 223, sch 4

Land Court Rules 2000 r 24F

ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corp [2001] QCA 119

Lee v Kokstad Mining Pty Ltd [2008] 1 Qd R 65

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Dasreef Pty Limited v Hawchar [2011] HCA 21

Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133  

Adani Mining Pty Ltd v Land Services of Coast and Country Inc [2015] QLC 48

Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor [2019] QLC 18

APPEARANCES:

D Kelly QC and J O’Connor of Counsel for the applicants

A Lucke, as agent for the active objector

K McAuliffe-Lake of Counsel for the statutory party

Background

  1. [1]
    This matter is listed for hearing for ten days in Gladstone commencing on 20 July 2020. A hearing review took place on 24 June 2020. Some general background information regarding this matter can be found in the decision of Kingham P delivered 27 March 2019.[1] The East End Mining Action Group (EEMAG) is the only objector to elect to take an active role in the hearing. Mr Lucke is the agent of and advocate for the objector EEMAG in these proceedings.
  1. [2]
    Pursuant to order 8 of 3 March 2020, any party wishing to challenge the expertise of a witness to give expert evidence or lead evidence, including any demonstration, during the site inspection, was permitted to file an application and an affidavit in support of the application.

Applications

  1. [3]
    On 15 June 2020 the applicant (Cement Australia) filed an application seeking that expert reports by Professor Brian Roberts and Jim Leggate, filed by the active objector, be struck out in whole, and those experts not be permitted to give evidence as to those reports. Cement Australia filed an affidavit in support of that application.[2]
  1. [4]
    On 15 June 2020, Mr Lucke for EEMAG submitted an affidavit and draft orders regarding the evidence of expert witness Dr Noel Merrick, filed by Cement Australia.[3]
  1. [5]
    Also on 15 June 2020 Mr Lucke submitted another affidavit and draft orders regarding a practical demonstration of surface to aquifer interconnectivity and turbulent conduit flow to occur at the site inspection.[4]
  1. [6]
    On 22 June 2020 the Court received an email from Jim Elliot, a non-active objector, forwarding a 14 April 2020 email also from Mr Elliot, proposing that time be allowed during the site visit to inspect chain of lagoons which he would facilitate by grading a track.[5] I don’t propose to consider that document further. A site inspection plan proposed by Cement Australia was agreed by EEMAG, although some additional sites were proposed.
  1. [7]
    On 22 June 2020 Mr Lucke provided yet another affidavit sworn 22 June 2020, draft orders, and a document headed “Annexure A”.[6]
  1. [8]
    Also on 22 June 2020 Cement Australia filed and served an affidavit and draft orders attaching a site inspection plan.[7]

Issues

  1. [9]
    In their 23 June 2020 written submissions Cement Australia identified six issues to be addressed at the review which corresponded broadly with those identified by EEMAG in the document headed “Annexure A” referred to at [7] above. The statutory party provided written submissions on 24 June 2020 ahead of the hearing as did EEMAG.[8]
  1. [10]
    The issues in order identified by Cement Australia are:
  1. The duration, location and timing of the trial;
  2. the Applicants’ application regarding EEMAG’s experts, Professor Roberts and Jim Leggate;
  3. EEMAG’s application regarding the Applicants’ expert, Dr Merrick;
  4. the site inspection plan and EEMAG’s application to adduce evidence during the site inspection;
  5. the requirements of paragraph 68 of Practice Direction 4 of 2018; and
  6. the need for written opening submissions.[9]
  1. [11]
    I asked the parties at the review if they were happy for the matters to be discussed in the order as listed in the applicant’s submission and they agreed.

Orders dated 24 June 2020

  1. [12]
    Shortly before the review hearing the parties were advised that the Court had been informed by the registry in Gladstone that there would now be courtrooms available in Gladstone both for the week commencing 20 July 2020 and the week commencing 27 July 2020.
  1. [13]
    At the conclusion of the review hearing I made orders relevant to issues 1, 3, 5, and 6 above. I also made an order (order 8) that any party may apply for further review by giving at least two business days’ written notice to the Land Court Registry and to the other parties of:

a) the proposed date for review;

b) the reason for the request; and

c) the proposed directions.

  1. [14]
    Despite that order, there has been material sent by Mr Lucke for EEMAG to the Court and to the parties, and a telephone voice message left with my Associate. I don’t think order 8 can be any clearer. The proper way for Mr Lucke to bring matters before the Court is to comply with the court orders. To be clear, except in extraordinary circumstances I will not take into account unsolicited material or material not filed in accordance with court orders.
  1. [15]
    The material sent by Mr Lucke included a misguided submission from Professor Roberts. Consideration of Cement Australia’s application regarding Professor Roberts and Mr Leggate was not concluded at the review hearing. The second document is headed “Proponents Written Submission” regarding the request to conduct a demonstration during the site inspection. Again, my consideration of the request to conduct a demonstration was not concluded at the review hearing. Further submissions had not been invited.
  1. [16]
    As noted, Mr Lucke also left a voice message on the private telephone of my Associate. How inappropriate that is should be obvious. I am advised that the call commenced, “This is confidential; I don’t want it given to the other parties”. Again, the inappropriateness is patent. Should EEMAG or any party wish to apply for further review they need to comply with the orders of 24 June 2020. I have not acted on any information contained in the voice mail message.
  1. [17]
    In these reasons I will address the outstanding issues from the 24 June 2020 review, that is, issues 2 and 4, however before proceeding some other issues arose at review.

Jurisdictional issue

  1. [18]
    At my request and before the review hearing Cement Australia produced a chronology of applications and a table of applicable legislation. Relevant to that exercise at the review Cement Australia offered to make submissions by 3 July 2020 concerning the jurisdiction of the Court to fully consider groundwater issues.

Cross examination of company secretary of Cement Australia

  1. [19]
    The affidavit of Mr Lucke dated 22 June 2020, and the corresponding draft orders raise the availability of secretary of Cement Australia, Ms Sophia Evans, for cross examination at the hearing[10]. Item 12 in that affidavit, headed “Cross examination of company secretary Sophia Evans”, is in regard to a statutory declaration made by Ms Evans in support of a 2008 mining lease application. Mr Lucke noted that Ms Evans is not listed as a witness on the hearing plan and that the solicitors for Cement Australia had advised him in writing on 18 June 2020 that it was a matter for the client as to the evidence they adduce and that Cement Australia had no obligation to call on or make available any particular witness in response to such a request. When this was discussed in the review hearing Cement Australia confirmed its position. Considering the information contained in the relevant affidavit and as discussed during the review it is not clear to me the intended purpose of evidence which Ms Evans might provide relevant to the recommendation/s the Court must make. Should Mr Lucke wish to pursue this evidence at the hearing it will be a matter for EEMAG to seek leave at that time and, if granted, to then subpoena Ms Evans. Should procedural assistance in that regard be required Mr Lucke can contact the Land Court Registry.

Evidence at hearing

  1. [20]
    In the course of discussing the duration, location and timing of the hearing a further issue arose. Order 6 of consent orders made by this Court on 9 April 2019 reads:

“The filed statements of evidence sworn or affirmed by lay witnesses will be their evidence in chief at the hearing, unless the Court orders otherwise.”

  1. [21]
    Mr Lucke said that he did not understand that the order would preclude witnesses for the objector from “giving evidence” – which he expressed as “there is such a large amount of documentation … how do the people explain the relevance of the document?” I informed the parties at the review that I did not propose to vacate the order. In the absence of an explanation as to the evidence to which the relevant witness might attest, which is not otherwise addressed in their filed statement, Cement Australia would not be in a position to consider what prejudice it might suffer and if or how it should address that particular subject matter. If at the hearing something does arise from a witness called by EEMAG which is not otherwise addressed in their statement, Cement Australia and/or the statutory party might be given leave to consider how they might respond.
  1. [22]
    I will now proceed to consider issues 2 and 4 referred to at [11] above.

Issue 2: Cement Australia’s application regarding EEMAG’s experts, Professor Roberts and Jim Leggate

  1. [23]
    Cement Australia sought orders that the affidavit[11] and statement of Professor Brian Roberts,[12] and the affidavit[13] and statement of Mr James Leggate,[14] filed by EEMAG, be struck out in whole, and that neither Professor Roberts nor Mr Leggate be permitted to give evidence as to the reports or other documents provided with their material.
  1. [24]
    In their 23 June 2020 written submissions, Cement Australia contended the material filed by Professor Roberts and Mr Leggate “largely amounts to material with a view to the Court conducting an “open ended inquiry” that is outside the scope of the Court’s jurisdiction”. Cement Australia also say a constraint on the Court relates to the objector’s ability to lead evidence outside the scope of its objections referring to section 268 of the Mineral Resources Act 1989 (MRA), citing ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corp[15] and Lee v Kokstad Mining Pty Ltd.[16] Cement Australia says the comments in those cases apply with equal force to the scope of the matters that are to be considered with respect to objections under the Environmental Protection Act 1994 (EPA).
  1. [25]
    Cement Australia says the material adduced for Professor Roberts addresses solely the precautionary principle, which is not “raise(d) squarely” in the objection filed by EEMAG.
  1. [26]
    In relation to Mr Leggate, Cement Australia says in written submissions the material falls into two categories – opinions as to past performance of the applicants and opinions as to the past performance of the mining industry or government.
  1. [27]
    As to the former, Cement Australia accepts EEMAG’s objections do include an objection on the ground of past performance – but would nevertheless seek to strike it out on the basis that it does not comply with the requirements for expert evidence at common law. As to the latter Cement Australia says it does not form part of any objection lodged by EEMAG and to the extent the material contains opinions falling into that category, it should be struck out.
  1. [28]
    The statutory party in written submissions agree with Cement Australia[17] that the reports do not comply with the requirements of expert evidence and should be struck out on that basis, however they say that both the precautionary principle and intergenerational equity appear to have been raised in EEMAG’s objection. In particular the EEMAG objection refers to the National Strategy for Ecological Sustainable Development by name, and to the standard criteria – sufficient to capture both the precautionary principle and intergenerational equity.
  1. [29]
    In the review hearing I understood Cement Australia to accept the view of the statutory party that intergenerational equity is raised in EEMAG’s objection, but not necessarily the precautionary principle. Cement Australia’s primary contention was repeated that based on the objections and the material filed, neither would qualify as expert evidence.
  1. [30]
    I accept the submission made by the statutory party to whom the objection was made that both the precautionary principle and intergenerational equity appear to have been raised in EEMAG’s objection.

EEMAG’s submissions regarding Professor Roberts and Mr Leggate

  1. [31]
    In his affidavit, Mr Lucke suggests that both Professor Roberts and Mr Leggate are “non-compliance experts” who can express opinions on process and compliance honed by their lengthy professional experience. He also says the reports of Professor Roberts and Mr Leggate contain relevant, factual material that is of considerable importance in substantiating “non-compliance issues”.
  1. [32]
    I accept that both Professor Roberts and Mr Leggate are persons of significant experience and high-level tertiary qualifications. Mr Leggate is also a former employee of the (former) Queensland Mines Department.
  1. [33]
    In Annexure A to Mr Lucke’s draft orders, after commenting that Mr Leggate has never appeared as an expert witness and Professor Roberts has not done so for some decades, he says that “traditional arguments … could not convince judges to accept the notoriously difficult remit of the Precautionary Principle”.
  1. [34]
    This suggests that the evidence Professor Roberts and Mr Leggate would give would be in relation to the application of the precautionary principle based on the factual information concerning historical non-compliance – and presumably expressing expert opinion on how the precautionary principle might be reflected in any recommendation made by the Land Court. However, this is not apparent in the statements or affidavits.

Professor Brian Roberts

  1. [35]
    It appears to me that references in Roberts’ statement of evidence and affidavit to the precautionary principle and intergenerational equity are at a very superficial level such as: “Intergenerational equity will be threatened due to reduced biodiversity, amenity, environmental and productivity losses”. Professor Roberts refers to a 2006 Productivity Commission report by Deborah Peterson about how precaution “may be beneficially incorporated in the principles and practices of Australian natural resource management”; and to attached IUCN 2007 guidelines “which can assist in the application of the principle”. There is no analysis of the application of either to the circumstances or how the principles should or must be applied in this matter.
  1. [36]
    Annexing an academic paper or summarising the work of another does not invest the author of the affidavit with the expertise. The fact that Professor Roberts is an environmental scientist of itself does not qualify him, for example, to state conclusions of political interference. Written in the third person, Professor Roberts’ statement of evidence identifies a number of “risks to the approval of extension of the present mine lease” although the matters listed such as “catastrophic loss of groundwater” and “groundwater depletion” are matters that, if relevant, should be the subject of evidence from a suitably qualified (water) expert.[18]
  1. [37]
    The title Professor Roberts’ places on his statement of evidence is “Standard Criteria, Precautionary Principle and Intergenerational Equity”. He expresses an opinion that the applicant has “technically … met the requirements of their social obligation in all but five spheres of their legal requirements”. Of the “five spheres”, a failure of “compliance monitoring” including weed management, and the failure to provide information to affected landholders appear to be the factual circumstances which give rise to the basis for expressing an opinion. However, it is not clear what that opinion is and how Professor Roberts is qualified to give it.

Mr Jim Leggate

  1. [38]
    Mr Leggate in his 30 March 2020 statement refers to the criteria in section 269(4) of the MRA and expresses his view that not all the provisions of the MRA have been complied with. He seems to suggest that there is “good reason” to refuse the application unless the grant was conditioned on the provision of a “grout curtain”, which is not further explained. He refers to complaints to the Queensland Criminal Justice Commission (CJC) in 1992; 1997 findings of the CJC; concerns about the use of 1997 measurements by Cement Australia as unacceptable as a benchmark to EEMAG; and the legacy of abandoned mines more broadly.[19] His affidavit addresses “a serious lack of compliance in the existing mining operation” and his “judgment ... that the landowners represented by EEMAG are at real risk from the granting of MLA 80156” arising from his lack of confidence in the administration of the MRA – based on his personal experience as a compliance officer.

Consideration

  1. [39]
    Mr Lucke proposed an order that sections within the statements and affidavits of Professor Roberts and Mr Leggate considered to lack relevance be removed and amended reports resubmitted. In those circumstances his draft order proposed that their status as experts be accepted.
  1. [40]
    The Court is performing an administrative function in these proceedings – it does not decide a dispute but instead is permitted to make recommendations. The decision-making power rests with the relevant Minister.
  1. [41]
    In relation to the objection to the environmental authority, the Court is required to consider the standard criteria. Schedule 4 of the Environmental Protection Act 1994 (EPA) defines standard criteria to mean, inter alia, principles of environmental policy, the precautionary principle and intergenerational equity.[20] The meaning and operation of the precautionary principle is set out by Preston CJ in Telstra Corporation Ltd v Hornsby Shire Council[21] as referred to by MacDonald P in Adani Mining Pty Ltd v Land Services of Coast and Country Inc[22] – the two conditions being threat of serious or irreversible environmental damage; and scientific uncertainty as to the environmental damage. If both exist, the precautionary principle could operate. If it is accepted that the objection by EEMAG is broad enough to encompass that principle expert evidence which might assist the court could concern, for example, opinion/s regarding measures or conditions considered appropriate to manage or mitigate particular risks.  However, it is not clear that either Professor Roberts or Mr Leggate are the appropriate witness to give such evidence.
  1. [42]
    In Makita v Sprowles,[23] Heydon JA described six expert opinion admissibility requirements:
  1. (a)
    The opinion has to be on an area that the court accepts is an area of specialist knowledge;
  1. (b)
    The witness must demonstrate that by reason of specified training, study or experience they are expert in that area;
  1. (c)
    The opinion must be confined to matters within that rea of expertise;
  1. (d)
    The expert must state, and the person calling the expert must prove, the facts on which the expert opinion is based;
  1. (e)
    If any facts relevant to the opinion are assumed they must be identified and proved in some other way; and
  1. (f)
    The expert must explain how the opinion expressed was reached.
  1. [43]
    Rule 24F provides that an expert’s report must, inter alia, give details of qualifications; detail literature or other material relied on in making report; and, where there is a range of opinion on the matters dealt with in the report, summarise the range of opinions and give reasons for the experts own opinion.[24]
  1. [44]
    The information in both the statements and affidavits of Professor Roberts and Mr Leggate contain “opinion” only in the most general of ways. They appear to rely on the expertise of others, hearsay and speculation.
  1. [45]
    Cement Australia notes that the Court is not bound by the rules of evidence, but argue the material filed for Professor Roberts and Mr Leggate offends the rule of evidence to such an extent that the material is of little to no weight and should not be accepted.
  1. [46]
    At paragraph 36 of their submissions, they say:
  1. …If it is the case that EEMAG wishes to make submissions as to the application of the precautionary principle or otherwise as to the past performance of the Applicants then the appropriate course is for those submissions to be made at the conclusion of the trial (based on the evidence as led) and not prematurely by way of the material filed for Professor Roberts and Mr Leggate.
  1. [47]
    In my view, based on the material filed, if Professor Roberts and Mr Leggate are to appear at the hearing, based on the material filed, the weight to be attributed to their evidence is unlikely to be great. Mr Lucke is concerned that if Professor Roberts and Mr Leggate are not permitted to appear an important aspect of EEMAG’s objection might not be explored. Mr Lucke said at the review, “You are going to have to place your faith in people who aren’t expert witnesses”.

Conclusion

  1. [48]
    This is what I propose. Should EEMAG wish to call Professor Roberts and Mr Leggate to appear at the hearing I will allow that to occur. However, I would caution that the nature of their evidence must be limited to the grounds of objection expressed by EEMAG and to subject matter within their knowledge and which they are competent to address, only. Their evidence will be considered lay evidence unless, at the hearing, some greater clarity regarding the quality of their evidence emerges. Their status as lay witnesses is relevant to the weight to be attributed to their evidence. Should Cement Australia or the statutory party consider the evidence of Professor Roberts or Mr Leggate is straying into areas which should not form part of my consideration it is incumbent upon their legal representative to raise the issue if and when it occurs.

Issue 4: The site inspection plan and EEMAG’s application to adduce evidence during the site inspection

  1. [49]
    Pursuant to order 8(b) made 3 March 2020, EEMAG filed the 15 June 2020 affidavit of Mr Lucke together with a draft order. In his affidavit Mr Lucke says:

“EEMAG seeks leave of the Court to conduct a trial to inject potable quality water into a sinkhole near Observation Bore 04 beside the Bracewell Lake. The purpose of this demonstration is to prove that this particular sinkhole has surface to aquifer interconnections with turbulent flow. The tanker has a 10,000 litre capacity which the contractor says can be discharged in six minutes. That this sinkhole is not unique was demonstrated by the water injection trial of sinkholes on nearby Lucke Farm in July 2005.”[25]

  1. [50]
    The draft order proposes that the demonstration occur during site inspection, that it would be contracted to a professional operator, that “this proposed action” be scheduled for 15 minutes, and that a representative of the Court video record the demonstration.
  1. [51]
    At the review hearing it was clarified that if the demonstration was to proceed it would be at the expense of EEMAG.
  1. [52]
    Cement Australia opposes the order proposed by EEMAG for evidence to be taken during the site inspection.
  1. [53]
    In their 24 June 2020 written submissions the statutory party say the following:
  1. There is no prohibition against demonstrations being conducted per se. However, as was stated by the plurality in Scott v Numurkah Corporation, such an action ought be “the joint action of the parties”, and may require the consideration of other factors absent that agreement. That the Applicants have indicated their resistance to such a demonstration5 means that the Court cannot easily make the order sought by EEMAG on this point.
  2. Further, the Department is similarly unable to consent to the proposed demonstration as, with respect to Mr Lucke, EEMAG have not identified precisely what connection the information which might be produced by the demonstration might have to a matter properly before the Court. Whilst the submissions of 23 June are of assistance, the issue remains nonetheless unclear.
  3. Finally, the discussion in those 23 June submissions seems to suggest that the purpose of the demonstration is to demonstrate a fact or assumption upon which expert evidence could be premised. If that were the case, it may perhaps be more convenient and appropriate for the issue to be dealt with by the demonstration or experiment being conducted by EEMAG, and the results being put to the relevant experts in cross examination.[26]
  1. [54]
    Cement Australia in their 24 June 2020 written submissions say:

45 In the Applicants’ submission, the application should be refused for at least the following reasons:

45.1 as best as the Applicants are able to discern, the purpose of the trial is for the Court to draw certain conclusions as to the surface water, groundwater or surface water to groundwater impacts associated either with the existing mine or alternatively, the proposed mine extension;

45.2 the Applicants and EEMAG have nominated independent experts as to the surface water, groundwater and surface water to groundwater impacts associated with the mining lease and environmental authority application. Those experts have filed extensive statements of evidence setting out their opinions as to each of those impacts;

45.3 related to the above, the trial proposed by EEMAG appears to be a belated attempt to introduce evidence of a kind that ought properly be given by an expert having regard to the appropriate methodology, purpose and relevance to their opinions as to the surface water, groundwater and groundwater to surface water impacts;

45.4 no evidence has been given as to the length of the time which will be needed for the trial to take place. In circumstances where the site inspection plan is of itself quite extensive, an estimate of the time taken for the trial is necessary particularly if it will mean that the site inspection will need to take longer than a day as presently proposed; and

45.5 even if the trial is to take place as contemplated by EEMAG, there is no proposal as to what relevance or weight the Court is attach to the video of the trial taking place. There is, for example, no proposal that any lay or expert witnesses would give evidence as to the purpose, scope or relevance of the trial to the issues in dispute between the parties.[27]

  1. [55]
    EEMAG in written submissions say:

45.5  Should the trial be allowed to proceed EEMAG would be happy to provide personnel and give evidence on the scope, relevance of trial to matters in contention between the parties even though the benefits of the trial should be obvious.[28]

  1. [56]
    In relation to this I note paragraph 6 of Land Court Practice Direction 2 of 2018, which says that unless ordered prior to the site inspection, the Court will not take evidence from any witness during a site inspection. If an order is made for evidence to be taken during a site inspection the evidence will be limited to topics specified in the order and recorded on a portable recording device.
  1. [57]
    When the matter was canvassed in the review hearing Mr Lucke described what those witnessing the demonstration would be expected to see.
  1. [58]
    Some general principles the Court might consider regarding a demonstration include whether in the Court’s opinion the demonstration will assist the court in resolving issues of fact or understanding the evidence, against the danger that a demonstration might mislead or confuse or result in an undue waste of time. Another consideration is the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated.
  1. [59]
    The nature of a scientific demonstration requires some interpretation for the non-experts. A demonstration does not stand in isolation. It requires an explanation by a suitable qualified witness. EEMAG could have conducted the experiment and had an appropriately qualified witness attest to the results and conclusions and that evidence presented to the Court.
  1. [60]
    I do not propose to make the order proposed by EEMAG. The benefit which might be achieved through its conduct, based on the explanations provided, might be achieved by questions put the relevant expert at the hearing: regarding the utility of such an experiment; asking the expert/s to consider the consequences, relevant to the conditions attaching to the draft environmental authority, if the proposed demonstration produced the result that EEMAG expects; asking whether the results EEMAG expects from the suggested demonstration would necessarily support the conclusion suggested by EEMAG; or would the result expected by EEMAG support additional or alternative conclusions. That can be done without conducting a demonstration at the site inspection. It is also open to EEMAG at the hearing to put alternative proposals and thesis to relevant experts appearing at the hearing and asking for their comment.

Orders

  1. The listing of the matter for hearing for 10 days commencing 20 July 2020 in Gladstone is confirmed.
  2. The application by Cement Australia to strike out in whole the reports of Professor Roberts and Mr Leggate is denied. If Professor Roberts and Mr Leggate appear at the hearing their evidence will be treated as lay evidence unless some greater clarity regarding the quality of their evidence emerges at that time.
  3. The application by EEMAG to conduct a demonstration during the course of the site inspection is denied.
  4. Any further request for review of this matter must be brought in accordance with Order 8 made 24 June 2020.

Footnotes

[1]Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor [2019] QLC 18.

[2]  Affidavit of Bronwyn Clarkson sworn 23 June 2020.

[3]  Affidavit of A Lucke dated 15 June 2020.

[4]  Further affidavit of A Lucke dated 15 June 2020.

[5]  Email sent by Jim Elliot to the Land Court Registry received 22 June 2020 at 10.55am.

[6]  Affidavit of A Lucke filed 22 June 2020; “Annexure A” dated 22 June 2020; Email from Alec Lucke to the Land Court Registry dated 22 June 2020 at 2.54pm.

[7]  Applicant’s site inspection plan received 22 June 2020.

[8]  Written Submissions of the Statutory Party filed 24 June 2020.

[9]  Written Submissions of the Applicants filed 23 June 2020, at 4.

[10]  As noted in the written submissions of the statutory party filed 24 June 2020,

[11]  Affidavit of B R Roberts sworn 19 March 2019 filed by EEMAG 20 March 2019.

[12]  Statement of Evidence of Prof B Roberts – Standard Criteria, Precautionary Principle, Intergenerational Equity and Environmental Sustainability filed by EEMAG 15 May 2020.

[13]  Affidavit of J Leggate sworn 19 March 2019 filed by EEMAG 19 March 2019.

[14]  Additional Statement of J Leggate filed by EEMAG 30 March 2020.

[15]  [2001] QCA 119.

[16]  [2008] 1 Qd R 65. Section 268(3) of the Mineral Resources Act 1989 precludes the Court from entertaining an objection from an objector to an application or any ground thereof , or any evidence in relation to a ground, where there has not been an objection duly lodged in respect of a matter which an objector subsequently wishes to agitate.

[17]   Regarding the requirements for expert evidence, the applicant cited in their submissions Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and Dasreef Pty Limited v Hawchar (2011) 243 CLR 588, stating that many of the requirements referred to in those cases are found in rule 24F of the Land Court Rules 2000.

[18]  Statement of Evidence of Prof B Roberts – Standard Criteria, Precautionary Principle, Intergenerational Equity and Environmental Sustainability filed by EEMAG 15 May 2020.

[19]  Additional Statement of J Leggate filed by EEMAG 30 March 2020.

[20]Environmental Protection Act 1994, sch 4.

[21]  [2006] NSWLEC 133.

[22]  [2015] QLC 48.

[23]  (2001) 52 NSWLR 705.

[24]Land Court Rules 2000 r 24F. This reflects the ‘proof of assumption’ rule – expert evidence is not admissible unless the assumptions relied upon by the expert are proved by admissible evidence.

[25]  Affidavit of A Lucke dated 15 June 2020 at para 2. 

[26]  Written submissions of the statutory party dated 24 June 2020 at [9]-[11] (footnotes omitted).

[27]  Outline of Submissions filed on behalf of the Applicants on 23 June 2020 at 45.

[28]  EEMAG submissions filed 23 June 2020 at 45.5.

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Editorial Notes

  • Published Case Name:

    Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor

  • Shortened Case Name:

    Cement Australia (Exploration) Pty Ltd v East End Mine Action Group Inc

  • MNC:

    [2020] QLC 25

  • Court:

    QLC

  • Judge(s):

    JR McNamara

  • Date:

    03 Jul 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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