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- Unreported Judgment
LAND COURT OF QUEENSLAND
Shaw & Ors v Idemitsu Australia Resources Pty Ltd & Ors  QLC 40
Michael David Shaw, Margaret Eleanor Shaw, Edward Michael Shaw, John David Shaw and Simone Margaret Shaw
Idemitsu Australia Resources Pty Ltd
ACN 010 236 272
Bowen Investment (Australia) Pty Ltd
ACN 002 806 831
Bligh Coal Limited
ACN 010 186 393
Application for further and better particulars
25 November 2020
20 November 2020
PG Stilgoe OAM
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – PARTICULARS – FURTHER AND BETTER – where the applicants requested further and better particulars of a response filed by the respondents in proceedings commenced by the applicants to review a compensation agreement between them and the respondent mining companies – where the respondents declined to give any further and better particulars – whether the respondents were required to provide the further and better particulars sought by the applicants
Land Court Act 2000 s 7
Land Court Rules 2000 r 4
Mineral Resources Act 1989 s 283B, s 363
Uniform Civil Procedure Rules 1999 r 149, r 157
Barclay Mowlem Construction Ltd v Dampier Port Authority  WASC 281, cited
Cross v Queensland Rugby Football Union Ltd  QSC 173, cited
ERO Georgetown Gold Operations Pty Ltd v Henry (2015) 212 LGERA 342, cited
Macarthur Central Shopping Centre Pty Ltd as TTE v Valuer-General  QLC 10, cited
Nothdurft & Anor v QGC Pty Limited & Ors  QLC 41, cited
Van der Est & Anor v Queensland Rail Limited (No 2)  QLC 4, cited
K McAuliffe-Lake (instructed by Marland Law) for the applicants
J Briggs (solicitor), Ashurst, for the respondents
- I am tasked with deciding whether Michael David Shaw, Margaret Eleanor Shaw, Edward Michael Shaw, John David Shaw and Simone Margaret Shaw (the applicants) are entitled to further and better particulars of a response filed on behalf of Idemitsu Australia Resources Pty Ltd, Bowen Investment (Australia) Pty Ltd and Bligh Coal Limited (the miners).
- On the face of it, this case is a simple one. The miners were granted a mining lease (ML) over Yongala in 1993. The miners operate a coal mine on the ML through Ensham Resources Pty Ltd.
- The miners signed a compensation agreement with the then owner, Valdemar John Walsh. The applicants bought Yongala in 2005 and the compensation agreement was assigned to them.
- Yongala is accessible from Wyuna Road. There is an access track from Wyuna Road (Yongala Access Road) and a haul road (Yongala Haul Road), both of which are entirely within the ML.
- The applicants have been using the Yongala Access Road and the Yongala Haul Road to access water bores installed on the ML, access cattle yards, inspect livestock and to conduct mustering. The applicants say they were also permitted to use the Yongala Haul Road to access paddocks severed by the ML.
- That access has always been subject to conditions but, until recently, the applicants were relatively free to come and go.
- On 25 March 2019, Ensham advised the applicants that the conditions for access to the Yongala Haul Road had changed. Relevantly, the applicants had to give 48 hours’ notice to use the Yongala Haul Road and that access would be subject to a security escort. Since 31 January 2020, the applicants are only required to give 24 hours’ notice but the requirement for a security escort remains.
- The applicants say that this is a material change of circumstances for the mining lease which gives rise to a right of review of compensation pursuant to s 283B of the Mineral Resources Act 1989 (MRA). Alternatively, the applicants want an order that the compensation agreement be amended pursuant to s 363(2)(e) of the MRA to restore the access regime that existed prior to March 2019.
- The miners say that the applicants have not established that there has been a material change of circumstances for the mining lease, they have not been denied access to the ML, and there is no agreement relating to access that needs amendment. The miners also note that the applicants have not particularised the claim for additional compensation.
The “pleadings” so far
- Arriving at the applicants’ articulation of their case has not been an easy path. Initially, the applicants filed a proceeding against Ensham. Seven months later, the applicants amended their claim to remove Ensham and add the miners. The applicants’ representatives have since then responded to two requests for further and better particulars. The most recent articulation of the applicants’ position – the further amended statement of facts, matters and circumstances – was filed on 21 August 2020.
- The miners filed a response to the further amended statement of facts, matters and circumstances on 21 October 2020. The response has a form of preamble:
“2. The Respondents do not respond to each and every opinion expressed, or statement made in the Further Amended SFMC. The Respondents’ position is that, save for factual matters accepted in this Response, all assertions made in the Further Amended SFMC are denied and the Applicants will need to prove any relevant factual assertions. Silence in relation to facts asserted or opinions expressed is not to be read as acceptance.
3. The Response adopts the definition of “Yongala Access Road” and “Yongala Haul Road” as referred to in paragraphs 3(b) and (c) of the Further Amended SFMC respectively. For completeness, the adoption of these definitions is for the purposes of consistency and clarity only, and should not be taken as a concession in relation to any facts, matters or circumstances asserted in the Further Amended SFMC.”
- The response then contains some assertions which, if they do not consist of a denial, appear to “flesh out” the facts and circumstances of this dispute.
- The applicants want particulars of these paragraphs. They say they are unable to file a reply unless they are given further and better particulars.
What factors are relevant to my decision?
- The Land Court does not have formal pleadings. Each of its jurisdictions has a set of standard directions that call for the parties to articulate their case in a way that responds to the complexity of the case. In the mining compensation jurisdiction, parties are usually called upon to file statements of facts, matters and circumstances. I made directions in this case for the filing of statements of facts, matters and circumstances.
- Section 7(b) of the Land Court Act 2000 states that, in the exercise of its jurisdiction, the Land Court must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.
- Rule 4 of the Land Court Rules 2000 states that, if the rules do not provide for a matter, the Uniform Civil Procedure Rules 1999 (UCPR) apply with necessary changes. The applicants submit that r 4 gives me power to order further and better particulars.
- The relevant provisions of the UCPR are as follows. Rule 149(1) states that pleadings must:
- (a)be as brief as the nature of the case permits; and
- (b)contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and
- (c)state specifically any matter that if not stated specifically may take another party by surprise; and
- (d)subject to rule 156, state specifically any relief the party claims; and
- (e)if a claim or defence under an Act is relied on—identify the specific provision under the Act.
- Rule 157 states:
157 Particulars in pleading
A party must include in a pleading particulars necessary to—
- (a)define the issues for, and prevent surprise at, the trial; and
- (b)enable the opposite party to plead; and
- (c)support a matter specifically pleaded under rule 150.
The parties’ submissions
- The applicants submit the particulars are necessary to allow them to understand the case put against them, narrow the dispute and prevent surprise. They say that the following particulars are essential:
- what the miners say was the prior access arrangement;
- the relevant provisions of the Coal Mining Safety and Health Act 1999 that apply;
- the relevant operational requirements of the mine; and
- particulars of the alleged unauthorised access.
- The miners say that there cannot be any doubt about the case they have to answer. They say that these particulars are not necessary for a reply because a reply should be delivered in answer to a defence only when necessary, as, for example, when the surprise rule requires it. They say that many of the applicants’ requests are requests for evidence, not particulars.
- To succeed in the substantive proceeding under s 283B, the applicants must prove:
“… there is a material difference between the circumstances for the mining lease when the compensation was originally agreed or determined, and the circumstances for the mining lease at the date when the change is said to have occurred, the change relating to circumstances relevant to the agreement about or determination of compensation.”
- As Kingham P has pointed out, the change in circumstance must be material to the agreement about, or the determination of, compensation. That could be a material change in the activities contemplated in the compensation agreement, an increase in scale or intensity, or a change to the way the mining activity is conducted which may result in a change to the compensation payable.
- To succeed under s 363, the applicants must prove a breach of the compensation agreement.
- This Court has a rigorous case management regime. It makes directions for the filing of evidence through witness statements, has provisions for managing expert evidence and regularly reviews parties’ compliance with orders.
- I have made directions taking this dispute to a hearing. After the miners filed their response, the applicants were to file and serve their reply and statements of lay evidence. The applicants have filed their statements of evidence but not their reply. The next step in the dispute is for the miners to file statements from their lay witnesses. That step is now overdue due to this dispute. Once the miners file their statements of evidence, the applicants have a further opportunity to file statements of evidence in reply.
“In my view, the contemporary role of pleadings has to be viewed in the context of contemporary case management techniques and pre-trial directions. …
Those processes leave very little opportunity for surprise or ambush at trial and, it is my view, that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met.”
- As Kingham P has pointed out:
“The degree of particularity required will depend upon the nature of the case. The role that case management directions and expert reports may play in refining the issues is relevant in determining how detailed the particulars need be.” (citations omitted)
- With one exception, I am not persuaded that the applicant’s request for further and better particulars is necessary for four reasons. Firstly, the applicants are seeking particulars of a response. The dispute the Court has to decide is sufficiently articulated in the material already filed and I can see little scope for surprise. Secondly, most of the applicants’ requests for particulars are requests for evidence. They are in the nature of interrogatories, directed to proving facts which the applicants would otherwise be unable to establish. Thirdly, the case management regime of this Court will, I suspect, provide the answers the applicants seek in the miners’ statements of evidence. Finally, the request appears to be directed to form, rather than substance, and therefore is in conflict with the Court’s mandate in s 7 of the Land Court Act 2000 to deal with the substantial merits of the case without regard to legal technicalities.
- the particulars requested in paragraphs 1 – 6, 10, 13, 15, 16(a), 17, 18(b) and (c) and 19 of the applicants’ request for particulars are requests for evidence.
- The requests for particulars in paragraphs 7 – 9 and 14 are answered in paragraph 2 of the miners’ response, as those parts of the applicants’ statement are specifically denied.
- As to paragraphs 11 and 12 of the request for particulars, the miners should provide particulars of the mine site safety requirements and safety laws to satisfy r 149(2) of the UCPR. Similarly, the miners should answer the requests in paragraphs 16(b) and 18(a). Otherwise, the answer to these requests falls within my comments at [29.2] above.
- The respondents must provide further and better particulars of the mine site safety requirements and safety laws referred to in paragraphs 11, 12 and 16 of the applicants’ request for further and better particulars.
- The application is otherwise dismissed.
- I will hear the parties as to further orders.
ERO Georgetown Gold Operations Pty Ltd v Henry (2015) 212 LGERA 342 .
Nothdurft & Anor v QGC Pty Limited & Ors  QLC 41 , .
 QLC 10.
 WASC 281 -, .
Van der Est & Anor v Queensland Rail Limited (No. 2)  QLC 4 .
Cross v Queensland Rugby Football Union Ltd  QSC 173.
- Published Case Name:
Shaw & Ors v Idemitsu Australia Resources Pty Ltd & Ors
- Shortened Case Name:
Shaw v Idemitsu Australia Resources Pty Ltd
 QLC 40
Member PG Stilgoe OAM
25 Nov 2020