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Linc Energy Ltd v Chief Executive, Department of Environment and Heritage Protection[2015] QLC 42

Linc Energy Ltd v Chief Executive, Department of Environment and Heritage Protection[2015] QLC 42

LAND COURT OF QUEENSLAND

CITATION:

Linc Energy Ltd v Chief Executive, Department of Environment and Heritage Protection [2015] QLC 42

PARTIES:

Linc Energy Ltd

(appellant)

 

v

 

Chief Executive, Department of Environment and Heritage Protection

(respondent)

FILE NO:

EPA118-15, EPA 119-15

DIVISION:

General Division

PROCEEDING:

Appeal under s 524 Environmental Protection Act 1994 from a decision to change the amount of a financial assurance

DELIVERED ON:

26 November 2015

DELIVERED AT:

Brisbane 

HEARD ON:

13 October 2015

HEARD AT:

Brisbane

MEMBER:

WA Isdale

ORDER:

The general application filed on 7 August 2015 is dismissed.

CATCHWORDS:

Disclosure – duty of solicitor

Uniform Civil Procedure Rules 1999, r 211, r 223(4)(b)(i)

Land Court Rules 2000, r 13

Environmental Protection Act 1994, ss 524, 527

Ferguson & Anor v Mackaness Produce Pty Ltd [1970] 2 NSWR 66

Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276

Rockwell Machine Tool Co Ltd v E.P. Barrus (Concessionaires) Ltd and Others 1968 2 all ER 98

Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323

APPEARANCES:

RG Bain QC and ND Loos instructed by Thomson Geer Lawyers for the appellant

JM Horton QC and E Hoiberg instructed by Litigation Unit, Department of Environment and Heritage Protection for the respondent

Background

  1. [1]
    The appellant holds an environmental authority in respect of activities it conducts and the respondent has decided to increase the financial assurance which the appellant is required to provide from $1,831,319 to $24,435,272.01. The appellant has exercised its right to appeal the respondent’s decision to this Court.
  2. [2]
    In order to progress the matter, the Court made, by consent, a number of orders on 29 June 2015. Order 3 was in the following terms:

“Disclosure

  1. By 7 July 2015, the parties are to disclose to each other, by way of list of documents, all documents in their possession or under their control that are directly relevant to an issue in the proceeding (subject to the matters in rule 212 of the Uniform Civil Procedure Rules 1999).”

The general application

  1. [3]
    Dissatisfied with the adequacy of the disclosure made, the respondent filed a general application on 7 August 2015 seeking further orders. It is this general application that is now before the Court.
  2. [4]
    Section 13 of the Land Court Rules 2000 provides that Chapter 7 of the Uniform Civil Procedure Rules 1999 (UCPR) applies, with necessary changes, to disclosure in cases such as the present.
  3. [5]
    When the general application came before the Court on 22 September 2015, Mr Bain QC for the appellant read his client’s third list of documents disclosed. It is 105 pages long. He sought an adjournment and referred to the third list to show that the appellant had not been idle. He said “… that’s what the third list is so far. There is more to be done.”[1]
  4. [6]
    The Court granted the adjournment and the matter returned to Court on 13 October 2015. The respondent complained that no further disclosure had been made and it submitted that the appellant was failing to give proper disclosure and thereby prejudicing the expeditious resolution of the appeal.

The submissions on behalf of the Chief Executive (respondent)

  1. [7]
    On 29 June 2015 the Court ordered that there be general disclosure by 7 July 2015. Pursuant to that order the respondent disclosed some 3,000 documents, mostly ones created by the appellant, which disclosed 94 documents. After written request from the lawyers for the respondent, 49 additional documents were disclosed. Further correspondence between the parties resulted in the appellant disclosing, on 21 September 2015, a further 1,805 documents.
  2. [8]
    Although Mr Bain’s words on 22 September 2015 no doubt gave rise to an expectation by the respondent that there would be further disclosure subsequent to that on 21 September, this did not occur. By letter dated 8 October 2015 under the hand of Mr Stephen Voss, a partner in the firm of solicitors acting for the appellant, the following appears:

“Our client considers that, with the filing of its third list on 21 September, 2015, it has complied with its disclosure obligations.”[2]

  1. [9]
    The submission made on behalf of the respondent is that there is an objective likelihood that the appellant has not complied with its duty of disclosure in respect of documents directly relevant to an allegation in issue.[3] The unexplained change of position in relation to further disclosure has raised the respondent’s suspicions.
  2. [10]
    It is submitted that the appellant’s duty of disclosure must be considered in light of s 527 of the Environmental Protection Act 1994 which provides that the appeal is by way of rehearing, unaffected by the review decision.
  3. [11]
    The categories of documents for which disclosure is sought are:
  1. “(a)
    all documents and reports containing information about the presence and concentration of contaminants on the site, including persistent organic pollutants such as Dioxins and Furans (Category 1);
  1. (b)
    all documents and reports containing information about the operation of gasifiers at a pressure greater than the hydrostatic pressure of the coal seam in which gasification was taking place (including information which was used to assess the hydrostatic pressure of the coal seam at given points in time) (Category 2);
  1. (c)
    all documents and reports showing deviations from the standard operating procedures of the company that have, or have potentially caused, contamination of the site, including all testing results associated with these deviations and information about the operation of the flare at less than the required destruction efficiencies (Category 3);
  1. (d)
    all documents and reports containing groundwater and gas results and standing water level data taken from in and around the gasifiers and other monitoring infrastructure on and off the subject site (Category 4);”
  1. [12]
    It was submitted that the affidavit sworn by Mr Voss on 13 October 2015 showed that he had fundamentally misunderstood the role of a solicitor in disclosure by clients, in that he gave advice on disclosure but did not actively participate in disclosure as he was required to do, effectively leaving his responsibility to an in-house scientist employed by the appellant.

Submissions on behalf of the appellant

  1. [13]
    The submissions advanced on behalf of the appellant were that the third list of disclosure took the matter beyond where the respondent was focused and that the disclosure of the third list material satisfied the disclosure obligation. The further disclosure sought, it was urged, would be irrelevant, oppressive and its existence only speculative.
  2. [14]
    It was submitted that a document is directly relevant, for present purposes, only if it tends to prove or disprove an allegation in issue in the proceedings.[4]
  3. [15]
    Disclosure by the respondent, it was submitted, was indiscriminate and made without proper consideration of relevance. The number of documents disclosed is no test of their relevance and the appellant has limited itself, quite properly, to what is relevant. The general application, it was argued, should be dismissed.

The evidence of Mr Voss

  1. [16]
    Mr Stephen Douglas Voss, a partner in the firm of Thomson Geer Lawyers, swore an affidavit on 13 October 2015. This was tendered on behalf of the appellant. The respondent’s counsel required Mr Voss for cross-examination. This was opposed and, after argument, the Court ruled that he would be required for cross-examination. Mr Voss was at Court and, after giving his evidence, his affidavit became Exhibit 1.
  2. [17]
    Mr Voss swears at paragraph 5 that the only issue in the proceedings is the likely cost of remediating the appellant’s underground coal gasification site near Chinchilla.
  3. [18]
    At paragraph 6 he swears that the appellant formed the view that the documents which are directly relevant are those which would be required to brief the experts in the proceedings.
  4. [19]
    Mr Brian Fainton, a senior environmental scientist employed by the appellant, collated the documents on the basis of his understanding of what would be relevant. This led to the first list of documents disclosed. A second list was provided as Mr Fainton was on leave when the first list was provided and, due to someone’s error, some documents were not included.
  5. [20]
    On 25 August 2015 Mr Voss and Ms Kirsty Dunn, a senior associate at Thomson Geer, met with Mr Fainton. The categories of documents sought were considered and Mr Fainton provided “instructions”[5] on the nature and type of documents that might fall within the categories of documents sought and what “in his opinion as a Senior Environmental Scientist”[6] those documents might demonstrate in relation to contamination of the site and remediation of that contamination.
  6. [21]
    This meeting, which lasted for about five hours, took place at the appellant’s premises. Mr Voss provided advice but did not view the material being considered for disclosure. As a consequence of the meeting Mr Fainton provided Mr Voss with a USB memory device containing the documents that Mr Fainton put on it. Mr Voss swears that Thomson Geer then “reviewed those documents for privilege” and prepared the third list, of 1,805 documents.[7]
  7. [22]
    Mr Voss swears that it would be “fundamentally oppressive”[8] to require disclosure of all laboratory reports for the history of the site. He was unable to say in his evidence just how much material was involved in this respect.
  8. [23]
    In cross-examination Mr Voss was shown three documents from the Chief Executive’s disclosure list. These are documents which appear to have been originated by the appellant. Document C92 refers to pressures employed, C46 to levels of BTEX chemicals, specifically Benzene and Toluene, at what were said to be above “trigger levels” and C100 which refers to pressures. Mr Voss was not willing to accept the relevance of C92 on which he said that he would seek expert’s advice. He had not seen C46 before and did not know if it would be directly relevant or not. He did not know if C100 had been disclosed or not and said it would have been such as to set a solicitor on a train of inquiry. He did not know whether that occurred or not.
  9. [24]
    The parties disagree on whether there is an objective likelihood that the required disclosure task has not been done and whether there has been a general deficiency on the part of the appellant in fulfilling the disclosure obligation. The respondent drew particular attention to what Mr Voss did and did not do, pointing to the role of Mr Fainton. On behalf of the appellant, the five hour meeting was said to demonstrate the thoroughness of the advice provided in relation to disclosure.

The applicable law

  1. [25]
    The respondent referred the Court to Ferguson & Anor v Mackaness Produce Pty Ltd.[9] At page 68 His Honour Macfarlan J said:

“It has been said frequently by judges in the Commercial Court of England throughout the whole of the time since that Court was established, and by other judges here, that the solicitors on whom this obligation is cast carry a particularly heavy burden requiring not merely advice to their clients when their clients seek advice but an active participation in insuring that the clients undertake what they are obliged to do by the order. In fact, so seriously is this obligation of the solicitors regarded that English judges on a number of occasions have said that failure to discharge them can well be considered to be professional misconduct. It is therefore, I hope, clear from what I have said that it is not sufficient for a solicitor simply to inquire of his client or of a principal, if he himself happens to be an agent only for the principal’s solicitor in another State, if he has any documents and request that he send any documents that he has to him; the obligation extends much further, namely, to the extent that the solicitor is obliged to make an appraisal of the case and form his own opinions as to what documents probably are in existence and actively to seek out from the client or his interstate or foreign principal whether or not those documents exist. It is only, indeed, in that way the obligation of the solicitor can be properly discharged.”

Resolution of the question

  1. [26]
    Particular attention was directed by counsel for the respondent to His Honour’s words “active participation” and it was submitted that Mr Voss had done less than this, effectively handing his responsibility to Mr Fainton and thereby contaminating the disclosure process fatally.
  2. [27]
    In what is reported as a practice note, Megarry J said in a case which settled after several days of hearing:

“In preparing for trial solicitors bear a great responsibility and a heavy burden. Not the least of these burdens is that of discovery.

…

Accordingly, it seems to me necessary for solicitors to take positive steps to ensure that their clients appreciate … the duty of discovery and its width.”[10]

  1. [28]
    Solicitors are under an obligation to ensure that their clients understand the nature and extent of the discovery obligation. The solicitor must not simply accept a list of documents provided by the client but must act to ensure that the client understands what is required.
  2. [29]
    The evidence of Mr Voss is that considerable attention was given to ensuring that the appellant, through Mr Fainton, understood the disclosure obligation.
  3. [30]
    Mr Horton QC for the respondent made the point that it would not be right to expect Mr Fainton, the scientist, to understand what is relevant in the same way as a lawyer would understand it. He might therefore omit relevant material. While there is some force in this, proper advice from the solicitor for the appellant ought to be able to address this to the extent that it can be achieved in the context of the case. Mr Fainton was the means of actually locating and providing the documents and he provided what was “potentially relevant”.[11] The solicitors reviewed them “for privilege”[12] and prepared the third list. It was not specifically deposed in Mr Voss’s affidavit that they were reviewed for relevance as they should have been but it was stated that the categories sought were reviewed with Mr Fainton in the context of relevance.[13] It appears that this was an appropriate procedure so that the concept of relevance could be understood by the person who was to locate the documents.
  4. [31]
    In these circumstances, it does not appear that the solicitors for the appellant have effectively delegated their duties to Mr Fainton but have actively participated in the disclosure process by advising on its conduct so as to ensure that the person collecting the documents is properly appraised of what is required.
  5. [32]
    In relation to documents C92, C46 and C100, it was not submitted that these documents were in fact not disclosed, rather that counsel had not found them in the material disclosed by the appellant.[14] In this case, it is not possible to draw any useful conclusions from discussing them on an assumption that they have not been disclosed.
  6. [33]
    The words of Queen’s Counsel for the appellant on 22 September 2015 do not, in my view, necessitate a conclusion that there was necessarily more to disclose but rather that there was more work to be done in regard to disclosure. What occurred, that no more was disclosed, cannot be regarded as raising a reasonable likelihood of incomplete disclosure.
  7. [34]
    In the circumstances of the present case, it has not been established that the solicitors for the appellant have not actively participated in the disclosure process as required. The Court is not satisfied on the basis of the evidence presented that there is an objective likelihood that the appellant has failed to disclose documents that are directly relevant in the appeal.
  8. [35]
    It follows that the general application must be dismissed. In the circumstances, it is not necessary to consider any question of oppressiveness.

Orders

The general application filed on 7 August 2015 is dismissed.

WA ISDALE

MEMBER OF THE LAND COURT

Footnotes

[1]  22 September 2015 T 1-4 L 17.

[2]  Affidavit of JP Pemberton affirmed and filed on 12 October 2015, JPP-7.

[3]Uniform Civil Procedure Rules 1999 (UCPR) r 211, r 223(4)(b)(i).

[4] Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323 at [45]. Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276, 282-283.

[5]  Exhibit 1 para 19.

[6]  Exhibit 1 para 19.

[7]  Exhibit 1 para 21.

[8]  Exhibit 1 para 28.

[9]  [1970] 2 NSWR 66.

[10] Rockwell Machine Tool Co Ltd v E.P. Barrus (Concessionaires) Ltd and Others 1968 2 All ER 98, 99.

[11]  Exhibit 1 para 20.

[12]  Exhibit 1 para 21.

[13]  Exhibit 1 para 19.

[14]  13 October 2015 T 1-26 L 24-25, T 1-29 L 32, T 1-30 L 16, T 1-30 L 8-9, “See, we have some trouble telling what’s been disclosed by you because there’s 105 page document that we can’t organise alphabetically”. T 1-38 L 22-25. “We’ve got some difficulty confidently asserting not disclosed because the list is, frankly, random. The list is unsearchable and disorganised. But to the best of our knowledge they haven’t been disclosed.” The documents on the list have been produced. T 1-8 L 20-24.

Close

Editorial Notes

  • Published Case Name:

    Linc Energy Ltd v Chief Executive, Department of Environment and Heritage Protection

  • Shortened Case Name:

    Linc Energy Ltd v Chief Executive, Department of Environment and Heritage Protection

  • MNC:

    [2015] QLC 42

  • Court:

    QLC

  • Judge(s):

    Member Isdale

  • Date:

    26 Nov 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Ferguson & Anor v Mackaness Produce Pty Ltd [1970] 2 NSWR 66
2 citations
Jump To
Cite 1 - [1970] 2 NSWR 66
Cite 2 - [1970] 2 NSWR 66
Rockwell Machine Tool Co. Ltd v E. P. Barrus (1968) 2 All E.R. 98
2 citations
Jump To
Cite 1 - (1968) 2 All E.R. 98
Cite 2 - (1968) 2 All E.R. 98
Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd[2001] 1 Qd R 276; [1999] QCA 276
2 citations
Jump To
Cite 1 - [2001] 1 Qd R 276
Cite 2 - [2001] 1 Qd R 276
Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323
2 citations
Jump To
Cite 1 - [2005] QSC 323
Cite 2 - [2005] QSC 323

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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