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Waratah Coal Pty Ltd v Nicholls (No 3)

 

[2013] QSC 209

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Statutory Order of Review

ORIGINATING COURT:

DELIVERED ON:

19 August 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

Written submissions

JUDGE:

Applegarth J

ORDER:

1.Declare that the respondents have complied with the order for disclosure dated 22 March 2013;

2.The originating application filed 5 November 2012 is dismissed;

3.The applicant’s application filed on 21 February 2013 is dismissed;

4.The applicant pay the respondents’ costs of and incidental to the proceeding, including the costs of and incidental to the application filed on 21 February 2013 and any reserved costs, to be assessed on the standard basis.

CATCHWORDS:

Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68, related

ADMINISTRATIVE LAW  – JUDICIAL REVIEW  – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION  – DECLARATIONS  – where applicant (“Waratah”) alleges two State Ministers gave a direction to the second respondent (“NQBPC”) to terminate process for proposed development of port terminals and second respondent implemented that direction – where applicant alleges Ministers’ direction and second respondent’s implementation of it are invalid – where respondents deny alleged direction was given – where respondents argue proceeding is misconceived and lacks utility – whether additional disclosure given by the respondents pursuant to the disclosure order of 22 March 2013 places the Shareholding Ministers’ letter in a substantially different context to that previously found – whether proceeding should be dismissed

PROCEDURE – discovery and interrogatories  – DISCOVERY AND INSPECTION OF DOCUMENTS – where applicant seeks an order for further disclosure – where applicant does not identify any basis to suggest documents sought exist or fall within scope of disclosure order – where applicant seeks expansion of existing disclosure order – whether documents sought are directly relevant – whether order for further disclosure should be made – whether respondents have complied with disclosure order

COUNSEL:

S A McLeod for the applicant

M D Hinson SC, with J M Horton, for the respondents

SOLICITORS:

Hopgood Ganim Lawyers for the applicant

Clayton Utz for the respondents

[1] On 22 March 2013 I published my reasons in respect of the respondents’ application to dismiss the proceeding, and on Waratah’s application for an order for disclosure.[1] I found that Waratah’s proceeding was misconceived in alleging that a direction had been given by the Shareholding Ministers’ letter dated 6 July 2012. The Shareholding Ministers’ letter did not amount to a direction, and additional documents which Waratah sought were unlikely to affect the proper interpretation of the letter. The proceeding also was liable to be dismissed because the discretionary relief it sought lacked utility and the Court should not permit a proceeding to continue which does not produce a useful result.

[2] I found that Waratah’s proceeding lacked merit and had no real prospect of success because the letter which it pointed to as constituting the alleged direction could not be fairly construed as conveying any such direction. Waratah had failed to show that the letter, in its context, constituted a direction, and so it had no real prospects of success. However, I deferred making an order that dismissed the proceeding both on the discretionary ground of its lack of utility and the additional ground that it was misconceived. I was prepared to make an order in relation to Waratah’s application for disclosure. However, I indicated that unless any documents disclosed pursuant to the order evidenced the direction which Waratah alleged was made, and thereby placed the Shareholding Ministers’ letter in a substantially different context, the proceeding would be dismissed on the additional ground that it was misconceived in alleging a Ministerial direction that was not in fact made.

[3] The order for disclosure that I made was previewed in paragraph [143] of my reasons, but I allowed the parties to confer about the form of order, and the agreed form of order was as follows:

“By 15 April 2013 each of the respondents disclose any document or documents within the period 18 May 2012 to 12 July 2012 which, alone or together with another document or documents, constitutes or evidences a direction, whether formal or informal, to the second respondent by the Shareholding Ministers (or any one of them) to terminate the process for identification of Preferred Respondents and negotiation with Preferred Respondents in respect of the proposed development of terminals 4 to 9 at the Port of Abbot Point.”

[4] A dispute arose about the respondents’ compliance with this order. On 8 May 2013 the respondents filed an application seeking a declaration that they had complied with the order. On 10 May 2013 I made directions in relation to that application. The hearing of the application, which was set down for 7 June 2013, was adjourned over the respondents’ objection essentially because Waratah wished to pursue an application for non-party disclosure. On 7 June 2013 I granted the adjournment, ordered Waratah to pay the respondents’ costs thrown away by the adjournment and made directions for the filing of written submissions in reply.

[5] Waratah had limited success in obtaining non-party disclosure. Most of the notices of non-party disclosure it had filed on 21 May 2013 were set aside. An order in similar terms to that made in respect of disclosure by the respondents in the main proceeding was made against the other Shareholding Minister, the Minister for Transport and Main Roads. A further order was made for non-party disclosure by the Director-General of the Department of Transport and Main Roads in respect of the same category of documents.

[6] Waratah has not taken advantage of a provision I made on 7 June 2013 for liberty to apply. It has not sought to argue that any disclosure made by the Minister for Transport and Main Roads or the Director-General of the Department of Transport and Main Roads pursuant to the notices of non-party disclosure indicate that the respondents have failed to comply with the order for disclosure made by me on 22 March 2013, or provide a basis to contend that the Shareholding Ministers’ letter was written in a different context to that which I found, or is such as to affect its proper interpretation.

[7] Paragraph 4 of the order made by me on 10 May 2013 required a statement of how the respondents’ application to dismiss should be disposed of in the event that I declared that the respondents had complied with the disclosure order. The respondents submitted that in such an event the Originating Application filed on 5 November 2012 should be dismissed and Waratah’s application filed on 21 February 2013 also should be dismissed, and that Waratah should be ordered to pay the respondents’ costs on an indemnity basis. Waratah submits that the respondents have not complied with the order for disclosure dated 22 March 2013, or that there should be an expansion of the disclosure order.

The issues

[8] The issues requiring determination are:

1.Has Waratah shown that the respondents have failed to comply with the order made by me on 22 March 2013?

2.Has Waratah established a basis for an amended or expanded order for disclosure by the respondents?

3.If the respondents have complied with my order and Waratah does not obtain an order for further disclosure, how should the respondents’ application to dismiss be disposed of?

Has the 22 March 2013 disclosure order been complied with?

[9] Although the proceeding was not conducted on pleadings, as Waratah’s submissions filed 3 June 2013 indicate, Waratah contends that the Shareholding Ministers’ letter dated 6 July 2012 amounted to or evidenced a direction to NQBPC to terminate the process for identification of preferred respondents and negotiation with preferred respondents in respect of the proposed development of terminals 4 to 9 at the Port of Abbot Point.

[10] For the reasons I gave on 22 March 2013, this contention lacked merit and had no real prospect of success because the letter could not be fairly construed as conveying any such direction. I indicated that unless the disclosure, which I ordered, placed the Shareholding Ministers’ letter in a substantially different context, the proceeding would be dismissed on the additional ground that it was misconceived. I wished to accord Waratah the opportunity to obtain disclosure of any documents (if they existed) which placed the letter in a different context, than the context disclosed by the evidence before me, and which might require the letter to be interpreted differently. For example, if the Shareholding Ministers or someone on their behalf had advised the NQBPC “you will be receiving a direction from the Ministers to terminate the process for identification of preferred respondents” then the letter which was received from the Shareholding Ministers dated 6 July 2012 might have been interpreted and understood by NQBPC as conveying a direction and to have constituted such a direction.

[11] As I remarked in my reasons, there may be no documents of the kind that I have ordered to be disclosed, but if there are, they may provide some additional context to the Shareholding Ministers’ letter. Other documents that Waratah sought in its application for disclosure were not ordered to be disclosed. I was not persuaded that those documents were directly relevant to the matter in issue in the proceeding or that I should exercise my discretion to order their disclosure.[2]

[12] Since the order for disclosure was made by me, the parties have corresponded about compliance with the order for disclosure. They have also provided substantial submissions.

[13] Waratah argues that the respondents have misinterpreted the disclosure order made by me. However, I am not persuaded that they have. In fact, I consider that they have properly understood the disclosure order. Waratah has not persuaded me that the further searches conducted by the respondents were improperly limited. The relevant affidavits indicate that the relevant deponents reviewed the judgment and the disclosure order and had particular regard to relevant parts of my reasons which stated, among other things, that the documents to be disclosed were not limited to those which constitute or evidence a direction given pursuant to the Government Owned Corporation Act 1993 (Qld).

[14] The respondents disclosed certain documents as a result of my order. These included documents which were attached to the minutes of the NQBPC Board meeting of 22 May 2012. The minutes themselves were in evidence at the hearing before me on 6 March 2013 and I referred to them by way of background at [25] of my reasons. One of the additional documents was a Board Paper (referred to in the parties’ submissions as “Document 2”). This document was tabled at the Board meeting on 22 May 2012 and was headed “Government Discussions to date”. It concluded with a “Proposed Path Forward”. It recorded a meeting held on 1 May 2012 between the NQBPC’s Chief Executive Officer, Mr Fish, and certain Ministers. The Shareholding Ministers did not attend the meeting. The meeting was attended by the Co-ordinator General and several Directors-General. The document recorded the fact that at the meeting NQBPC was informed that:

“…GVK Hancock had advised the Government that the MCF and T4-9 projects (NQBP Projects) were holding up the EPBC approvals for its T3 project, due to the size of the NQBP Projects. Potential developers for T4-9 projects had failed to execute Framework Agreements by 30 April 2012 and Rio Tinto had publicly withdrawn from the process.

As a result, the Government has made a decision to stop the NQBP Projects. …”

[15] The document went on to record that following the meeting Mr Fish inquired of an Assistant Director-General, Premiers and Cabinet whether the matters raised at the meeting would form a direction from Shareholding Ministers.  Given the scale of decisions, Mr Fish advised the Assistant Director-General that formal advice, and most likely a direction, would be required by the Board before proceeding.  The Assistant Director-General noted this and stated that he would discuss with others and revert to the NQBPC.  The result was a meeting on 8 May 2012 between Mr Fish and the Director-General, Premier and Cabinet together with two Assistant Directors-General and others.  The subject matters discussed at that meeting are recorded and there is no mention of whether there would be a direction from Shareholding Ministers. I add that the respondents have not disclosed any external correspondence or other records of communications between the NQBPC and any of the parties in attendance at the meetings on 1 or 8 May 2012 which addressed the question of whether there would be a direction from Shareholding Ministers (or indeed from any other Minister or Ministers).

[16] The document that was tabled at the meeting on 22 May 2012 related to discussions with the government up to that date including the letter from the Deputy Premier dated 18 May 2012.  The document summarised that letter which included advice that for the reasons stated the government “can no longer support the T4-9 and MCF projects”.  The document concluded with a proposed path forward which included the need to agree with the government about a framework for negotiations with existing customers who had either executed Framework Agreements (BHP and Hancock) or APRAs (Anglo, Vale and Macmines).

[17] The document also identified the need to respond to the Deputy Premier’s letter.  A draft letter to the Deputy Premier was tabled.  It has been disclosed pursuant to the order made by me on 22 March 2013, as has a copy of the letter which was in fact sent by NQBPC to the Deputy Premier dated 25 May 2012, which is in identical terms to the draft.  After acknowledging receipt of the Deputy Premier’s letter of 18 May 2012 (the terms of which are set out in paragraph [23] of my Reasons of 22 March 2013), the letter continued:

“That letter has been referred to the Board of North Queensland Bulk Ports Corporation (the Corporation) which has requested that I respond as follows.

First, notwithstanding the importance of the future development of Abbot Point to the State, the Corporation appreciates your personal attention to it so early in your administration.

Secondly, the Corporation fully appreciates the terms of your letter and the guidance you have given as the State’s current thinking on the issues dealt with in your letter.  Full regard will be had to your comments.  Timely and close engagement of relevant departments, including your Department, and the Co-ordinator General, will be given priority.  This reaffirmed focus will include progressing Dudgeon Point through the EIS stage.

Thirdly, the Corporation is aware that the Government is putting in place the necessary shareholding Ministers and related administrative arrangements to permit the Corporation, and the Board, to perform their obligations under both relevant State legislation and the Corporations Law (Cth).  In order for the Corporation to lawfully and properly discharge some of those obligations there is an indispensable requirement that the Corporation have consultation with and the benefit of the direct guidance of its nominated shareholding Ministers.

As you know, to do otherwise would possibly increase the likelihood of legal liability of the Corporation to third party, aggrieved Preferred (Project) Respondents and potentially unnecessarily expose the conduct of the shareholding Ministers and others to challenge.

The Corporation will expedite its reconsideration of all matters relevant to the future of the projects in question including those identified by you, consistent with the stated Government policy.

The Corporation looks forward to progressing the development of Abbot Point.”

[18] In the process of complying with my order for disclosure, the NQBPC identified an email from the Deputy Executive Director of the Office of Government Owned Corporations, Mr Brett, dated 8 May 2012, which is outside the ordered date range.  This email was said to be the only document in the possession of NQBPC in the terms of the broader comments made by me and the respondents decided to provide the email to Waratah outside of the disclosure process.  In doing so the respondents advised that they did not consider the email to be directly relevant to an allegation in issue in the proceeding nor did the respondents consider that the email alone or together with another document constituted or evidenced a formal or informal direction.  The email dated 8 May 2012 listed a number of topics for discussion at a forthcoming meeting.  One of the numerous dot points was “Will NCBP be directed to make the required changes?”.  A handwritten note beside this question stated “Probably”.

[19] Waratah submits that the disclosure given by the respondents pursuant to the disclosure order places the Shareholding Ministers’ letter in a substantially different context, and supports the allegation that a direction was given by the Shareholding Ministers.  The basis for this submission is not developed.  I will return to this topic in considering the third substantial issue of what orders, if any, should be made. 

[20] The summary of the meeting on 1 May 2012 did not report to NQBPC that a direction from the Shareholding Ministers was to be made, or was even expected.  The Shareholding Ministers were not present at the meeting.  The report of the meeting does not state that the Board should expect a direction from the Shareholding Ministers.  Instead, after the 1 May meeting Mr Fish of NQBPC spoke to an Assistant Director-General and stated that it was most likely that a direction would be required by the Board before proceeding.  The meeting on 1 May 2012 concluded on the basis that the Assistant Director-General would revert to the NQBPC on that point.  The report of the meeting on 8 May 2012 did not advise the NQBPC that the topic of a direction from the Shareholding Ministers was addressed at that further meeting.  The document does not suggest that anything said at that meeting was interpreted as constituting a direction.  By the Board meeting on 22 May 2012 formal advice from the Deputy Premier in the form of his letter dated 18 May 2012 had been received, and that letter set the scene for further developments.

[21] The fact that the email document of 8 May 2012 records that someone thought that the NQBPC probably would be directed to make the changes required to implement the government’s decision does not mean that this expectation was fulfilled.  Waratah has not contended in this proceeding that the Deputy Premier’s letter of 18 May 2012 constituted such a direction.  The person who wrote “Probably” on the email of 8 May 2012 may have anticipated that a direction would be given by the Deputy Premier or, indeed the Shareholding Ministers.  The issue, however, is whether such a direction was in fact given.  The evidence considered by me in reaching my decision of 22 March 2013 indicated that there was no such direction, and the further documents that have been disclosed do not disclose any such direction.

[22] Waratah argues that the letter from NQBPC to the Deputy Premier dated 25 May 2012, which I earlier quoted, reflects the question raised by Mr Fish at the meeting held on 1 May 2012 and the subsequent advice he received at the meeting on 8 May 2012.  The letter notes that the government was putting in place the necessary Shareholding Ministers and related administrative arrangements to permit the NQBPC and its Board to perform their legal obligations which included consultation with, and the benefit of direct guidance of, the nominated Shareholding Ministers.  This is an unremarkable observation.  The subsequent course of events has been outlined by me in my previous judgment.  In short, by the time of its meeting on 26 June 2012 the NQBPC had not received any direction or “direct guidance” from the Shareholding Ministers.  The Board considered a range of matters on 26 June 2012 and resolved on a course of action.  Matters included a proposal to terminate the APRAs after 30 June 2012.  Its letter of 26 June 2012 to the Shareholding Ministers anticipated receiving the Ministers’ advice that this was appropriate.  As I stated in my previous judgment, this letter provided the Ministers with an opportunity to advise the Board whether they wished it to pursue a different course.

[23] I do not accept Waratah’s submission that the additional disclosure given by the respondents clearly places the Shareholding Ministers’ letter in a substantially different context, or that it supports Waratah’s allegation that the Shareholding Ministers’ letter amounted to or evidences a direction to the NQBPC to terminate the T4-T9 process.

[24] Waratah submits that it is now apparent from the further disclosure given by the respondents that “it was the decision of the Government, not the Second Respondent, to terminate the proposed T4-T9 development”.  This submission is without merit.  The material before me at the hearing on 6 March 2013, including the Deputy Premier’s letter of 18 May 2012, made apparent that the State Government had decided to withdraw its support for, and thereby terminate, the development of the Multi-Cargo Facility and the associated T4-T9 infrastructure.  The fact that it was a government decision was known to Waratah because the Deputy Premier wrote to it and, as Waratah’s submissions note, the Deputy Premier issued media releases in August and December 2012 stating that the government had “scrapped” the previous government’s proposal to build the additional terminals and the Multi-Cargo Facility.

[25] Next Waratah argues that “the result of the Government’s decision to terminate was, at least in part, the result of GVK Hancock advising the Government that the Multi-Cargo Facility and T4-9 projects were holding up the EPBC approvals for its T-3 projects”. This is beside the point. The reasons why the government decided to terminate the development of T4-T9 is irrelevant to the issue of whether or not a direction was given by the Shareholding Ministers. The reason the government decided to terminate the development is interesting, but irrelevant.  It is certainly not directly relevant to any issue in the proceeding and documents relating to the reasons for the government’s decision do not fall within the order for further disclosure that I made.

[26] Next, Waratah argues that it now apparent from the additional disclosure that “the Government’s decision to terminate was made in spite of the Second Respondent itself having expended more than $50 million on the project, including the multi-cargo facility, as at 22 May 2012”.  Again, this point is irrelevant.

[27] In summary, I am not persuaded that any of the points raised by Waratah about the additional documents which have been disclosed place the Shareholding Ministers’ letter in a substantially different context.

[28] Waratah argues that the respondents have not disclosed certain documents.  I will not set out the categories. They are summarised in paragraph 23 of Waratah’s submissions.  I accept the respondents’ submissions in response that Waratah does not identify any basis for its assertion that there is an objective likelihood that particular documents exist, or identify any basis for supposing that any such documents which exist fall within the scope of the disclosure order.  I am not persuaded that any of the supposed documents (if they exist) fall within the scope of the order made in circumstances in which Waratah relies upon the Shareholding Ministers’ letter of 6 July 2012 as constituting or evidencing the relevant direction.

[29] In early May 2012, NQBPC may have been interested in ascertaining whether there would be a direction from Shareholding Ministers, and on 8 May 2012 someone thought that a direction (whether from the Shareholding Ministers or someone else is not clear) would probably be given. But the evidence in the case, and the disclosure which has been given both pursuant to my order of 22 March 2013 and the order for non-party disclosure, does not suggest that any such direction was in fact given.

[30] Waratah notes that there has been no disclosure of any documents recording the process undertaken by Mr Fish in drafting the letter that was tabled at the Board meeting, and sent with the Board’s approval to the Deputy Premier. It submits that there should be disclosure of all documents within Mr Fish’s personal files and diaries in relation to the meetings held on 1 and 8 May 2012 and for the period between 8 and 21 May 2012 insofar as such documents relate to the preparation of the draft letter. I do not agree. The relevant issue is whether the Shareholding Ministers’ letter evidenced or constituted a direction. The events of 1 and 8 May 2012 are very much in the background and, to the extent that those meetings might bear upon how the Board of NQBPC might interpret the Shareholding Ministers’ letter, it is the summary of those meetings, as tabled on 22 May 2012 which assumes importance. The summary does not suggest that a direction had been given, or that any person at the meetings on 1 or 8 May 2012 stated that the Shareholding Ministers would be giving such a direction. The process undertaken by Mr Fish in drafting the letter on and prior to 21 May 2012 is not directly relevant. It is difficult to see how any documents (if they exist) which Mr Fish considered in drafting that letter fall within the terms of the disclosure order made by me on 22 March 2013, or how they are directly relevant to an issue in the proceeding. Waratah has not made out a case for ordering disclosure of such documents. It is hard to imagine how Mr Fish’s process in drafting the letter falls within the scope of the disclosure order.

[31] The minutes of the Board’s meeting of 22 May 2012 record that it approved the following action:

“2.The CEO is instructed to liaise with the relevant departmental officers concerning …a) Shareholding Minister arrangements for the Corporation.”

[32] Waratah submits that these actions, as approved by the Board, were consistent with the “indispensable requirement that the Corporation have consultation with and the benefit of direct guidance of its nominated shareholding Ministers”. On that basis Waratah submits that the respondents have failed to disclose:

“(a)any documents recording the steps taken by the Shareholding Ministers, including the second respondent, as reflected by Mr Fish's awareness that ‘the Government is putting in place the necessary shareholding Ministers and related administrative arrangements to permit the Corporation, and the Board, to perform their obligations under both relevant State legislation and the Corporations Law (Cth)’;

(b) any documents recording or otherwise relevant to the consultations undertaken by Mr Fish with the Shareholding Ministers, which was considered by the second respondent to be an ‘indispensible requirement’; 

(c) Mr Fish's risk assessment, at least insofar as it involved the Shareholding Ministers; and

(d) any documents recording or otherwise relevant to the actions progressed by Mr Fish to place the second respondent ‘in a position to respond to the requirements of the Shareholding Ministers, when advised, in a timely fashion’.”

[33] I am not persuaded that any of these documents (if they exist) fall within the scope of the disclosure order. The fact that the incoming government had to put in place the necessary Shareholding Ministers and related administrative arrangements to permit NQBPC and its Board to perform their legal obligations is unremarkable. The documents relating to that matter do not fall within the disclosure order, and I am not persuaded that they are directly relevant to any issue in the proceeding. The same applies to the other categories of documents.

[34] Next, Waratah notes that although Mr Fish’s earlier affidavit exhibited an extract from the Board minutes of a meeting held on 26 June 2012, it did not exhibit copies of the documents attached to those minutes. In a letter dated 8 April 2013, Waratah’s solicitors sought disclosure of those documents, namely:

“(a)the report regarding the ‘Port of Abbot Point - Reassessment of T4+ MCF Projects’: (referred to at page 5 of Mr Fish's affidavit);

(b)the report regarding the ‘Port of Abbot Point - Financial Implications from the government announcement on terminating MCF & T4-9 Projects’: (referred to at page 5 of Mr Fish's affidavit); and

(c)the letter which was tabled at the board meeting to be sent by the Chairman of the second respondent and which was to request ‘advice from shareholding Ministers that it is appropriate to terminate the APRAs and the T4-T9 process’: (referred to at page 6 of Mr Fish's affidavit).”

[35] I do not consider that the respondents were required to disclose those documents unless they evidence a direction of the kind alleged by Waratah. I previously declined to order disclosure of those documents unless they evidenced a direction of the kind alleged by Waratah. Waratah is, in effect, seeking to re-litigate that issue in circumstances in which there is no evidence that the documents contain or evidence such a direction. Waratah has not persuaded me that the documents fall within the class of documents ordered to be disclosed.

[36] Earlier in the proceedings the letter from NQBPC to the Shareholding Ministers dated 26 June 2012 and their response dated 6 July 2012 were exhibited.  The documents were referred to in my reasons. Waratah notes that there has been no disclosure in respect of:

(a)Any correspondence or record of the communications between the Shareholding Ministers in relation to the letter of 26 June 2012, or the preparation and execution of a response.

(b)Any record of the NQBPC’s internal consideration of the letter sent to the Shareholding Ministers dated 26 June 2012.

(c)Any record of NQBPC’s discussion or external consideration of the Shareholding Ministers’ letter with any or more of the attendees at the meeting on 1 and 8 May 2012.

[37] As to (a) that may be explained because there are no such documents or they do not fall within the scope of the disclosure order. In any event, it is hard to see how any communication between the Shareholding Ministers in relation to the letter of 26 June 2012 or the response to it could evidence the making of a direction in the form of the Shareholding Ministers’ letter unless it evidenced the fact that the Ministers intended to issue a direction and that intention was conveyed to the Board in some form other than the letter itself. And there is no evidence that such a communication of their intention (if any) to give a direction was communicated. As to (b) this is unremarkable and, even if such documents exist, they have not been shown to fall within the scope of the disclosure order. As to (c) the submission assumes that there were such discussions, and this has not been demonstrated. There is no reason to suppose that, having received the Shareholding Ministers’ letter dated 6 July 2012, that the respondent discussed it with those attendees. But if they did so, and documents relating to those discussions exist, those discussions apparently did not evidence the making of a direction. Overall, like many of the other assumed documents in respect of which Waratah seeks further disclosure, searches undertaken by the respondents to comply with my order, and the respondents’ lawyers review of those documents did not reveal that these documents, either alone or together with other documents, constituted or evidenced a direction of the kind referred to in the disclosure order.

[38] I am not satisfied that Waratah has demonstrated a failure by the respondents to comply with the disclosure order made by me. The arguments canvassed by Waratah in correspondence and in submissions are unpersuasive in this regard. The material filed by the respondents and their submissions indicate that the respondents have complied with the disclosure order. I propose to make a declaration to that effect.

Expansion of disclosure

[39] Waratah submits that it should have leave to expand the date range of 18 May 2012 to 12 July 2012 to the “date range commencing on the date that GVK Hancock advised the Government that the T4-T9 projects were holding up the EPBC approvals for its T3 projects”. It submits that the date range of 18 May 2012 to 12 July 2012 is no longer appropriate in view of the chronology of events described in the summary of discussions document described as Document 2. I am not persuaded that this is the case. The date range was selected because 18 May 2012 was the date of the Deputy Premier’s letter, and it was this letter which set the scene for the Board’s deliberations on 22 May 2012 and its further meeting on 26 June 2012, which authorised the sending of a letter to the Shareholding Ministers. That letter provided the immediate context to interpret the Shareholding Ministers’ letter in response.

[40] Waratah submits that had Document 2 been disclosed prior to the hearing on 6 March 2013 then the parties and the Court would have been aware of the more complete chronology of relevant events leading to the letters, and Waratah would have sought disclosure within a wider date range. This is not to say, however, that a disclosure order with that wider date range would have been made. I am not persuaded that it would have been. It is unremarkable that the disclosure to date has resulted in the identification of documents outside the period of 18 May to 12 July 2012. For example, it is unremarkable that the Board’s minutes of 22 May 2012 referred to events that had occurred prior to 18 May 2012.

[41] It is true, as Waratah submits, that the documents that were tabled at the 22 May 2012 meeting would have provided a more complete chronology, but those documents do not suggest that a direction had been given by the Shareholding Ministers prior to 18 May 2012. Instead, what happened is that the government’s decision, as first indicated on 1 May 2012 (at a meeting at which the Shareholding Ministers did not attend) was formally conveyed by the Deputy Premier in his letter of 18 May 2012. The fact that certain events occurred on 1 and 8 May 2012 does not make documents relating to those meetings directly relevant to any issue in the proceeding. If the Shareholding Ministers had indicated prior to 18 May 2012 that they intended to issue a direction, or if someone else had conveyed that fact to NQBPC on behalf of the Shareholding Ministers, then one would expect that fact to have been summarised in the document that was tabled at the Board meeting on 22 May 2012. The documents that have been disclosed pursuant to the disclosure order made by me do not provide a secure foundation to conclude that it is appropriate now to expand the date range. The date range selected by me was an appropriate one, and it seems to me that it is still an appropriate one, given the issues in the case and the evidence about what disclosure to date has revealed. The possibility that documents will give a more complete history is not sufficient to expand the date range. The more remote in time a date is from the date of the Shareholding Ministers’ letter the less significant it is likely to be in providing a context for the proper interpretation of the Shareholding Ministers’ letter.

[42] No one suggested at the original hearing before me that the Deputy Premier woke up on 18 May 2012 and unilaterally decided that day the Queensland Government’s policy with respect to the Abbot Point development. The process of the government arriving at that decision would have occurred in the days and weeks that preceded 18 May 2012. The fact that the government made a decision to withdraw its support from the proposed development of the Port prior to 18 May 2012 is unremarkable and something which would have been apparent from the fact that the Deputy Premier formally communicated that decision on 18 May. The possibility always existed that NQBPC received some advance, informal notice of the government’s policy decision.  The fact that it did so has been revealed by the disclosure. But the disclosure also indicates that NQBPC did not treat the notice of the decision as a direction and NQBPC sought to ascertain if a Ministerial direction was to be given. It was not told that one would be. In due course it received the Deputy Premier’s letter of 18 May, and subsequently attention turned to the issue of what directions or guidance Shareholding Ministers might give.

[43] Waratah has not justified why, as a matter of discretion, the date range should be expanded so as to commence on the date that another coal company advised the government that the proposed development of the T4-T9 projects were holding up its project. The relevant issue is whether the Shareholding Ministers gave a direction in their letter dated 6 July 2012. The events leading up to a different Minister sending NQBPC formal advice of the government’s decision (being a decision which was informally communicated on 1 May 2012) are not directly relevant to the proper interpretation of the Shareholding Ministers’ letter. The date range ordered by me was an appropriate one to resolve Waratah’s application for disclosure. Waratah is not entitled simply to re-agitate the disclosure application which was heard and determined. When I determined that application, it was possible that a wider date range would provide a more complete chronology of events leading to the relevant letters. But this did not justify making a wider order, and I am not persuaded that such a wider order should be made now, as a matter of discretion.

[44] I decline to exercise my discretion to expand the disclosure order.

Final orders

[45] On 10 May 2013, I directed that the parties provide a statement of how the respondents’ application to dismiss should be disposed of, including a summary of the reasons in support thereof, in the event that I declared that the respondents had complied with the disclosure order. In compliance with this direction, the respondents submit that the Originating Application filed 5 November 2012 and the application for disclosure filed on 21 February 2013 should be dismissed. I consider that such orders are appropriate.

[46] My reasons of 22 March 2013 concluded that Waratah’s proceeding and the relief sought in it lack utility and should be dismissed.  This was because the relief sought had no practical utility. In addition, I was minded to dismiss the proceeding because the proceeding had no real prospects of success because the letter which Waratah pointed to as constituting the alleged direction could not fairly be construed as conveying any such direction. I deferred dismissing the proceeding on this additional ground but indicated that unless any documents disclosed pursuant to the disclosure order that I intended to make placed the Shareholding Ministers’ letter in a substantially different context, the proceeding would be dismissed on the additional ground that it was misconceived in alleging a Ministerial direction that was not in fact made.

[47] The documents disclosed pursuant to the disclosure order made by me do not provide a materially different context to that found in my previous reasons.  Accordingly, I propose to dismiss the proceeding on the two bases previously mentioned and also to dismiss Waratah’s application for disclosure (which was adjourned on 22 March 2013).

Costs

[48] The respondents submit that Waratah should be ordered to pay their costs on an indemnity basis.  The grounds for that submission are not developed.  Waratah does not make any submissions in response on costs, notwithstanding my direction for submissions in reply.  Therefore I cannot be sure whether it opposes an order for indemnity costs, but I imagine that it does so.

[49] In circumstances in which I am not assisted by submissions on whether costs should be ordered on an indemnity basis, my reasons will be brief.

[50] The proceeding appears to have been launched on a speculative basis, namely that the first respondent had issued a direction to terminate the process and that NQBPC had complied with that direction.  The proceeding has been summarily dismissed on two grounds.  I found that it had no real prospect of success.

[51] The principles governing the ordering of costs on an indemnity basis are well-established.

[52] Not every case that is summarily dismissed is visited with an order for costs on an indemnity basis.  It is not submitted that Waratah knew that its case was hopeless when it commenced it or continued to prosecute its case after it realised that it was without merit.  I am not persuaded that this is a case in which an order for indemnity costs is warranted.

[53] The orders will be:

1.Declare that the respondents have complied with the order for disclosure dated 22 March 2013.

2.The originating application filed 5 November 2012 is dismissed.

3.The applicant’s application filed on 21 February 2013 is dismissed.

4.The applicant pay the respondents’ costs of and incidental to the proceeding, including the costs of and incidental to the application filed on 21 February 2013 and any reserved costs, to be assessed on the standard basis.

Footnotes

[1] Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68.

[2] Ibid at [145].

Close

Editorial Notes

  • Published Case Name:

    Waratah Coal Pty Ltd v Nicholls & Anor (No 3)

  • Shortened Case Name:

    Waratah Coal Pty Ltd v Nicholls (No 3)

  • MNC:

    [2013] QSC 209

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    19 Aug 2013

Litigation History

No Litigation History

Appeal Status

No Status