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  • Unreported Judgment

Macarthur Coal Ltd v MCG Coal Holdings


[2011] QSC 303








Trial Division





7 October 2011




5 and 7 October 2011


McMurdo J



  1. To proceed as expeditiously as possible with the transfer of the environmental authority for the land which is the subject of Mineral Development Licence No 162 (‘relevant land’) from Stanwell Corporation to the second defendant;
  2. Upon that transfer occurring to forthwith give notice of entry to each affected landholder in order to allow access for preliminary activities on the relevant land;
  3. That subject to:
    1. The relevant notice period for notice of entry elapsing;
    2. The plaintiffs’ representatives or nominated consultants:
      1. Participating in an induction course for the site conducted by the Site Senior Executive;
      2. Conducting preliminary activities consistent with the notice or notices of entry;
      3. Complying with the second defendant’s safety and environmental procedure contained within the second defendant’s land access memorandum for MDL 162;
      4. Complying with the conditions of the environmental authority; and
    3. The plaintiffs giving 5 days notice in writing to the second defendant and the Site Senior Executive of each time that they require access to the relevant land, specifying the names of the persons who will be entering the land, the areas of the relevant land which it is proposed to access, and the number of days for which they require access;

until the trial of the proceeding or further earlier order the undertaking parties will do all such things as are necessary including directing the Site Senior Executive to allow the plaintiffs’ representatives or consultants to enter upon the relevant land for the purpose of conducting preliminary activities.

  1. To proceed as expeditiously as possible to agree conduct and compensation agreements with affected land holders to facilitate access to the relevant land for advanced activities;
  2. That subject to:
    1. A relevant conduct and compensation agreement having been made;
    2. The plaintiffs giving 7 days notice in writing to the second defendant and the Site Senior Executive of any advanced activities proposed by the plaintiffs on the relevant land so as to permit the second defendant to comply with the terms of the conduct and compensation agreement; and
    3. Compliance with the terms of the conduct and compensation agreement in carrying out advanced activities;

Until the trial of the proceeding or further earlier order the undertaking parties will do all such things as are necessary including directing the Site Senior Executive to allow the plaintiffs’ representatives or consultants to enter upon the relevant land for the purposes of conducting advanced activities;

  1. That until the trial of the proceeding or further earlier Order the second defendant by William Kendall will meet weekly (or if agreed between the representatives at some other interval) with Allan Fidock (or any other representative agreed by the parties) on behalf of the plaintiffs to confer:
    1. As to the program of activities to be conducted on the land and any activities being conducted on the land so as to minimise any interference between the plaintiffs’ proposed activities and the second defendant’s proposed activities and any inconvenience to any affected land holder;
    2. As to the form of any and all conduct and compensation agreements;
    3. As to the compilation of the JORC reserve statement;
    4. In respect of securing rail and port capacity;
    5. In respect of the preparation and advancing of the mining lease application.


  1. The trial dates for this proceeding for ten days commencing 7 November 2011 be vacated.
  2. The proceeding be placed on the Commercial List.
  3. The trial of the proceeding be set down for trial for 10 days commencing 30 January 2012.
  4. Paragraphs 5 to 10 of the order of Applegarth J made on 19 September 2011 be vacated.
  5. Any application for disclosure by the second, third and fifth defendants be filed on or before 14 October 2011.
  6. The second, third and fifth defendants file and serve summaries of evidence of any lay witnesses they intend to call at the trial on or before 7 November 2011.
  7. The second, third and fifth defendants serve on the plaintiffs’ solicitors their expert’s report from Antony Morgan on or before 15 November 2011.

7A.Any expert report in response to a report under paragraph 7 will be served by 15 December 2011.

  1. The plaintiffs file and serve summaries of evidence of the lay witnesses they intend to call at the trial on or before 2 December 2011.
  2. The second, third and fifth defendants file and serve summaries of any evidence in reply on or before 9 December 2011.
  3. Save with the leave of the trial judge no party will be able to adduce any evidence which is not fairly disclosed by a summary provided in accordance with these orders.
  4. The plaintiffs and the second, third and fifth defendants agree an index for a trial bundle of documents on or before 9 December 2011.
  5. The matter is to be set down for review on 16 December 2011 at 9.30 am.
  6. The parties be at liberty to apply with two days prior written notice.
  7. The costs of the application, including today’s hearing, be costs in the proceedings.


PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – OTHER MATTERS – where the matter was set down for trial – where the second, third and fifth defendants applied to adjourn the trial – where the applicants argued that they could not be prepared for the trial – where the applicants argued that counsel and a solicitor would be unavailable – where the applicants argued there was late and defective disclosure – where the plaintiffs argued that the matter required an urgent trial so that development of the subject coal mine would not be further delayed – where the plaintiffs argued that the applicants were refusing access to the subject land to perform expedition work –whether the trial should be adjourned


PH Morrison QC with PP McQuade for the plaintiffs

D Jackson QC with MD Martin for the second, third and fifth defendants

5 October 2011: TM Bunney (sol) for the fourth defendant

7 October 2011: J Lane (sol) for the fourth defendant

RG Hancock (sol) for the sixth and seventh defendants


Corrs Chambers Westgarth for the plaintiffs

Clarke Kann for the second, third and fifth defendants

Holding Redlich for the fourth defendant

Tucker & Cowen for the sixth and seventh defendants

[1] This case is set down for trial over 10 days commencing on 7 November 2011.  There is an application by the second, third and fifth defendants, which I will call the McDonald parties, to vacate the trial date.  They say they cannot be prepared for the trial by then and that there would be difficulties because counsel and a solicitor who have been involved in the case would not be available.  The application is opposed by the plaintiffs and by the fourth defendant.  The sixth and seventh defendants have a neutral position.

[2] This case was commenced by a claim filed on 24 May 2011.  On 7 June 2011 the case was placed on the Commercial List.  The plaintiffs filed an application seeking summary judgment against the McDonald parties, which was returnable on 18 August 2011.  But on the day the application was not pressed and as requested by the plaintiffs it was adjourned to a date to be fixed.

[3] At the same time I made directions for further steps in the proceedings.  There was no substantial contest as to those directions, which provided for steps to be taken through to the end of November and for a further review of the case on 2 December 2011.  Subsequently the plaintiffs sought to have the case set down for trial.  The case was listed for review before Justice Applegarth on 19 September 2011.  The plaintiffs then read some affidavits which referred to the urgency of the matter.  There was no evidence then tendered by the defendants.

[4] The McDonald parties were represented by their principal solicitor, Mr Cliff.  Counsel for the plaintiffs informed his Honour that another trial, which had been scheduled for November, had been vacated.  They suggested that this case could be tried within two of the three weeks which had become available.

[5] Mr Cliff had not heard of the availability of those days for this case.  He did not consent to it being set down in November and expressed concern that the case could not be prepared within that time.  Understandably he did not know of the availability of senior or junior counsel who had been briefed from the outset.

[6] His Honour set the matter down for two weeks commencing 7 November before Justice Martin.  He vacated a number of the orders made on 18 August and replaced them with orders for an accelerated timetable.  However, he did not express a concluded view that the case would be ready for hearing by 7 November.  Mr Cliff submitted that this was uncertain at least from the fact that the plaintiffs had not yet made disclosure (as the parties had been ordered to do on or before 14 September).  Mr Cliff said, "We can use our best endeavours to get it ready, and if we can't, we can't." 

[7] The McDonald parties say that the case cannot be ready for trial next month.  The plaintiffs have made disclosure, but the McDonald parties say that it is defective and they propose to make an application about it.  They say that this is holding up the preparation of their evidence.

[8] The sixth and seventh defendants were ordered to provide disclosure, as were other parties, by 23 September.  They did so, but a few dates late, and this is said to have caused further difficulties for the McDonald parties. 

[9] An expert is being retained by the McDonald parties.  He says he will need four to five weeks from now to prepare his report.  No provision was made for expert evidence in the directions made by Justice Applegarth; nor was there any provision for expert evidence in the orders I made in August because nothing was then proposed by any party about expert evidence. 

[10] The McDonald parties will not be able to use senior and junior counsel who have been briefed in the matter so far, but it is not said that other suitably qualified counsel are unavailable.  A more substantial problem for them is that Mr Cliff is also the solicitor in some unrelated litigation, which is to be tried immediately prior to the appointed dates for the hearing of this case.  Unfortunately, he did not raise that with Justice Applegarth.  I accept that his occupation in that other case would substantially impede the preparation of this one.

[11] The plaintiffs submit that this case could still be made ready for trial on the appointed dates.  They say that the expert's report could be provided even within the first week of trial.  That course is unsatisfactory.  It would involve a substantial risk that the case would start but not finish within the allocated time.  There is at least a real chance that the expert evidence would bring expert evidence in response, which would not be available within the fortnight which has been allocated.

[12] More generally it appears that the McDonald parties will have considerable difficulty in being ready for trial by 7 November.  Those difficulties would be contributed to by the unavailability of their present counsel. 

[13] A few matters should be noted about the predicament of the McDonald parties.  The first is that they are not parties who have defaulted, at least in any substantial sense, in complying with the rules or pre-trial directions.  The second is that they have not signed a request for a trial date or otherwise represented to the Court that the case was or would be ready for trial on these dates.  The third is that the orders made on 19 September represented a substantial acceleration of what the parties agreed should be the progress of the case according to the orders made in August.

[14] The plaintiffs argued that there is a particular urgency in having the trial conducted in November, which comes from the need for expedition in the process of developing the subject coal mine.  This includes the process of applying for a mining lease for which one of the important steps would be an environmental impact study, a step that would take at least many months.  The plaintiffs say that until they obtain the relief which they seek by this claim, they cannot progress the development.  The need for expedition is particularly high because of the limited opportunities for access to port facilities.

[15] The evidence in this respect is substantial and I accept that the case is attended by circumstances of true urgency.  But all of those considerations must have been apparent when the orders of 18 August were made.  Apparently it wasn't then considered to be essential that there be a trial, let alone a judgment, by the end of this year.

[16] This application is opposed also by the fourth defendant, a company in liquidation.  The liquidators have undertaken not to deal with relevant property pending the outcome of the case.  They gave that undertaking at the request of both the first plaintiff and the fifth defendant.  Their complaint is that a delay in the trial will unduly delay the liquidation.  Again, that consideration was apparent when the orders of 18 August were made.

[17] Counsel for the plaintiff said that what had changed since then was the expressed refusal by the McDonald parties to access being provided to the plaintiffs to perform work on the subject land prior to the determination of this litigation.  In response the McDonald parties have volunteered some access.  When that was first raised last Wednesday the application was adjourned to this morning to enable the detail of that access to be defined.

[18] Those arrangements have now been defined by undertakings which the McDonald parties have offered to give to the Court.  They go some way to meeting what the plaintiffs say are their problems, but in many respects the plaintiffs say that there are shortcomings in the arrangements which are proposed.

[19] I accept that they do not put the plaintiffs in the position they would enjoy with this case concluded in their favour, and that this is likely to remain the position even after any further discussions in the next few days as to what might be the arrangements pending the trial.  Accordingly, I accept that there remain circumstances of urgency for the determination of the case.

[20] On a practical level the retention of the present trial dates would be unlikely to provide much real assistance to the plaintiffs.  Firstly, there is the risk that a case which has not been properly prepared for trial would not be completed within the time allocated.  Secondly, it's unrealistic to expect that a case of this complexity would not be reserved by the trial Judge.  And having regard to the value of what is at stake, it would be unrealistic to assume that were the plaintiffs to succeed at the trial, the McDonald parties would not appeal.

[21] In other words, the retention of the present trial dates would by no means ensure that the litigation was entirely concluded by December, which is when according to the plaintiffs' evidence, they need to go onto the subject land and otherwise act in relation to this project.

[22] In these circumstances the case should be adjourned so as to commence in the first fortnight of the next Court term.  It will be ordered that the present trial dates be vacated and that the case be tried over 10 days commencing 30 January 2012.  I have been provided with a draft order by counsel for the McDonald parties.  It contains undertakings within six paragraphs. 

[23] As I have said, the plaintiffs strongly contend that the arrangements provided by those undertakings will not be satisfactory, at least from their perspective, but I see no reason not to accept these undertakings.

[24] Upon those undertakings there will be an order in terms of this draft, amended as discussed in the course of submissions, and in particular to provide for an expert report in response to a report to be provided by the McDonald parties, and for a further review on 16 December at 9.30.  This draft also provides for costs to be costs in the proceeding. 

[25] There is no argument then as to that from anyone?

[26] That being the case I think it is preferable that paragraph 14 read, "Costs of the application, including today's hearing, be costs in the proceeding."



Editorial Notes

  • Published Case Name:

    Macarthur Coal Ltd & Anor v MCG Coal Holdings Pty Ltd & Ors

  • Shortened Case Name:

    Macarthur Coal Ltd v MCG Coal Holdings

  • MNC:

    [2011] QSC 303

  • Court:


  • Judge(s):

    McMurdo J

  • Date:

    07 Oct 2011

Litigation History

No Litigation History

Appeal Status

No Status