Your JavaScript is currently disabled. For the best experience viewing this website please enable JavaScript as described here.

Authorised Reports & Unreported Judgments

Exit Distraction Free Reading Mode

Please Note: You are about to print a copy of the onscreen version of this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please return to the case for PDF printing options.

Word Highlighter:
0of0
Change Font and Font Size
Font:
Font Size:
CITE

Unreported Judgment

Mt Moss Mining Pty Ltd v Chief Executive, Department of Environment and Heritage Protection[2016] QLC 24Member Cochrane
Add to List

Mt Moss Mining Pty Ltd v Chief Executive, Department of Environment and Heritage Protection[2016] QLC 24

LAND COURT OF QUEENSLAND

CITATION:	Mt Moss Mining Pty Ltd v Chief Executive, Department of Environment and Heritage Protection [2016] QLC 24
PARTIES:	Mt Moss Mining Pty Ltd (applicant)
	v
	Chief Executive, Department of Environment and Heritage Protection (respondent)
FILE NO:	EPA113-16
DIVISION:	General Division
PROCEEDING:	Application for a stay.
DELIVERED ON:	12 April 2016
DELIVERED AT:	Brisbane
HEARD ON:	31 March 2016
HEARD AT:	Brisbane
MEMBER:	WL Cochrane
ORDERS:	The original decision of the respondent dated 4 March 2016 be stayed until the determination of the appeal in this matter or further order of the Court, with no further conditions, save that the current financial guarantee of $888,160 shall remain in place. Reserve the question of costs.
CATCHWORDS:	Practice and Procedure – Continuation of stay in proceedings – Environmental Protection Act 1994 s 535 – Application of relevant principles, practice and procedure – issue of the existence of previous stay Environmental Protection Act 1994, s 535 Land Court Act 2000 Citigold Corporation v Chief Executive, Department of Environment and Heritage Protection [2015] QLC 10 Citigold Corporation Ltd v Chief Executive, Department of Environment and Heritage Protection (No. 2) [2015] QLC 50 Cougar Energy Limited v Debbie Best, Chief Executive under the Environmental Protection Act 1994 [2011] QPEC 150 (21 December 2011) Minister for Immigration and Multicultural Affairs v Legeng and Others (2000-2001) 205 CLR 507 Mt Moss Mining Pty Ltd v Chief Executive, Department of Environment & Heritage Protection [2015] QLC 38 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
APPEARANCES:	Mr J Fulcher, solicitor for the applicant, Mt Moss Mining Pty Ltd Mr Dillon of Counsel for the respondent, Department of Environment and Heritage Protection

Background

[1]
On 16 October 2015 his Honour Mr Smith of this Court granted a stay of the operation of a decision of the respondent to increase the financial assurance required under the appellant’s environmental authority EPML00557513 (the EA) to $9,595,000.
[2]
On that occasion, as is recorded in his Honour’s reasons, “what is in dispute is not either the question of whether or not a stay should be granted. The Chief Executive has conceded that in this case, it is appropriate for a stay to be granted. The only issue of contention between the parties is a question of the conditions that should be imposed on the granting of a stay.”
[3]
In his ex-tempore decision the learned Member referred to submissions which had been made by the solicitor for the respondent:^[1]

“The power to grant a stay should not be exercised merely because immediate compliance with an order is inconvenient to the applicant. In Cook’s Construction Proprietary Limited versus Stork Food Systems Australasia Proprietary Limited (2008) Qd R 453 at 12.

Paragraph 9:

Rather, adopting the language of the Queensland Court of Appeal, the focus of the Court’s attention must be upon whether the applicant’s appeal might be rendered nugatory by refusal of the stay and whether the applicant would be irredeemably prejudiced if a stay were not granted and the applicant’s appeal was ultimately to be upheld.”

[4]
In the present case the appellants relied upon the following material:

Affidavit of Julie-Ann Kelly sworn 24 March 2016

Affidavit of Adam Francis Norton sworn 24 March 2016

Affidavit of Jonathan Fulcher of 24 March 2016

Further affidavit of Jonathan Fulcher affirmed on 30 March 2016.

[5]
The respondent relied upon an affidavit of Anne-Maree Kate Ireland affirmed 29 March 2016.
[6]
Subsequent to being granted a stay on 16 October 2015 the applicant in today’s proceedings lodged a new plan of operations which triggered a further financial assurance decision being made by the respondent.
[7]
That financial assurance decision was delivered on 5 February 2016 and calculated the financial assurance required as being $10,207,599.
[8]
The current amount of financial assurance is $888,160.00
[9]
From that decision the appellant sought an internal review, the result of which was delivered on 4 March 2016 and amended the amount of required financial assurance to a figure of $10,018,414.81. It is against that figure that the appellant now appeals and in respect of which the stay is sought.
[10]
The earlier proceedings considered by his Honour Mr Smith have now been discontinued.
[11]
It is unnecessary to recite all of the matters canvassed by his Honour Member Smith in his 2015 decision but it is convenient to highlight the following:

(a)
There is a valid concern on the part of the State about the prospects of being faced with circumstances where mining operations have ceased operations and left mining sites in an unacceptable position in circumstances where the financial assurance paid by those mining companies has not been sufficient to cover the costs of rehabilitating the site to an acceptable standard and therefore exposing the State to considerable expenditure.

(b)
While the matters referred to above generate a valid concern, there was no evidence directly linking the current appellant Mt Moss Mining Pty Ltd to any such risk.

(d)
The mining operation on the subject site has gone into a period of care and maintenance but the appellant has actively undertaken and continues to undertake a scheme of rehabilitation of the project site and had expended a considerable amount of money on undertaking that rehabilitation.

(e)
The State had conceded that it was appropriate that the stay should be granted without the impost of the great proportion of the financial guarantee as proposed by the respondent in its decision under appeal.

[12]
In the previous proceedings, the appellant had contended that the appropriate amount of financial assurance was $1,505,000 and, seizing upon that figure, the respondent had argued that it should be required to provide that additional amount by way of financial guarantee should the stay be granted.
[13]
Against that contention his Honour was influenced by sworn evidence before the Court that it would cost $239,050 to arrange the additional guarantee sum because, to a large extent, the appellant’s financial position is influenced by its commercial activities in Papua New Guinea from which country repatriation of funds (in Kina) is tightly controlled and in circumstances where that cost would not be able to be recovered by the appellant.
[14]
Ultimately his Honour concluded “had this matter come before me and been fully argued shortly after the appeal was granted, I can well see that my discretion may have been swayed to order an additional amount of $624,840 to be paid. However, due to the evidence of the significant work undertaken by the appellant since that time, up until now, and therefore the lessening of the risk to the State should the appellant cease operation at any time in the near future and taking into account all the factors to be considered under the case authorities that I have referred to, I have decided, somewhat reluctantly, to exercise my discretion in this matter to order that the stay be granted until the determination of the appeal in this matter or further order of the Court with no further conditions, save that the current financial guarantee of $880,160 (sic) remain.”^[2]
[15]
Against that background then this fresh appeal raises similar but not identical issues.
[16]
It was urged upon me in the submissions of the appellant that this was a case in which the doctrine of issue estoppel as articulated in Port of Melbourne Authority v Anshun Pty Ltd (the Anshun case).^[3]
[17]
Those submissions suggest that the judgment of his Honour Member Smith on the previous occasion effectively binds me to come to the same decision.
[18]
As articulated in Halsbury’s Laws of Australia, in general terms, estoppel by judgment prevents a party to litigation in which a final judgment was given from raising, in any subsequent litigation between parties to the prior litigation, any issue or cause of action determined by the judgment and any issue or cause of action which could and should have been raised in the prior litigation. It is based on the principle that there must be an end to litigation. Estoppel by judgment includes res judicata or cause of action estoppel, issue estoppel and Anshun estoppel.^[4]
[19]
Clearly in the present case there has been no final judgment such as would trigger an Anshun type of estoppel.
[20]
That is enough to dispose of that argument however I am bound to observe that, in any event, the factual matrix with which the Court is confronted on this occasion is not identical to that which confronted his Honour back in October.
[21]
First of all the financial assurance relates to a different plan of operations.
[22]
Secondly in the present case the respondent now contends that the financial assurance should be paid in full.
[23]
Thirdly we are dealing with the matters as they exist at a particular and different time.
[24]
That is not to say that his Honour’s decision on the previous occasion is not a highly persuasive factor.
[25]
In response to a question from me which inquired “can you tell me what material factual change attends the current application that wasn’t apparent on the occasion of October 2015 when Member Smith made a decision in this matter?”^[5], counsel for the respondent responded by saying “so one relevant factual change is that there is now a new plan of operations which is different.”^[6]
[26]
Counsel for the respondent was then asked “can you take me in the affidavit of Ms Ireland to where I will see some detail about how the changed plan of operations introduces an additional factual matter?” to which Counsel fairly responded “I can’t, your Honour”.
[27]
I then went on to enquire as to whether there was any changes in the basic factors surrounding the decision I was asked to make which were in any way materially different to the plan that his Honour Mr Smith had to consider back in October 2015.
[28]
Counsel attempted to persuade me that there was some evidence that, notwithstanding the rehabilitation work in respect of the Tailings Storage Facility had apparently continued since the date of the October 2015^[7] decision that work was inadequate but was ultimately forced to concede that the treatment of the Tailings Storage Facility (TSF) aligned with earlier decisions that were made.
[29]
Counsel for the respondent drew my attention to an amended post mining land use plan dated December 2015 (which clearly post-dated the decision of his Honour Mr Smith in October 2015). In respect of that material I enquired of Counsel for the respondent “where in any of your material is there something that asserts that the environmental risk has been heightened, made worse, elevated – whatever descriptor you want – since the time Mr Smith made his decision back in October 2015?”^[8]
[30]
Counsel for the respondent said “nothing, your Honour save for those results”.
[31]
Those results, properly and fairly considered, do not reveal any elevated environmental risk.
[32]
Counsel for the respondent went on to assert that “the primary reliance of the respondent is upon the general risk that if the worst happens, there’s insufficient financial assurance rather than positing that there’s some imminent disaster”.^[9]
[33]
I then suggested to Counsel for the respondent that “nothing that you’ve told me – and I’ve invited you to do so now several times, highlights any factual matter – any matter of fact – anything in the milieu of all the facts that attach to this particular site and all of the environmental risks that are inherent in its existence, even, have changed in any significant way since Mr Smith made his decision in October last year at a time when your client agreed it was then appropriate that a stay should be granted”. He replied “broadly speaking, that’s so, your Honour”.^[10]
[34]
Respondent Counsel was reduced to acknowledging that the only change which had occurred was that his instructions had changed between October 2015 and the present time. There was no explanation for that change in instructions.
[35]
Some confusion surrounded the current financial assurance assessment but ultimately it became clear that the current financial assessment aligned with the financial assessment made back in June 2015 “which resulted in a change in the classification of TSF material from high to low risk due to information presented in reports, plan of operations 1 November 2011 and 30 October 2012 prepared by Landline Consulting”.^[11] That is to say the risk assessment at the present time was really no different from that which existed when his Honour Mr Smith made his decision back in October 2015.
[36]
Ultimately in response to a proposition from me in the following terms “but in the circumstances of the case, he [His Honour Mr Smith] felt compelled to exercise his discretion to allow a stay, and I don’t see – nothing that you’ve told me – this is not a criticism of you. It’s a problem with material and it may be reflective of the fact that it’s unable to be demonstrated that there was any significant change in what I keep referring to as the factual matrix – all of the facts and circumstances that surround this operation since October last year to the present – so that there is now a heightened risk of environmental damage or harm or serious environmental harm, using the language of the Act”^[12], Counsel for the Respondent responded “that’s so, your Honour”.^[13]
[37]
At the end of the day Counsel for the respondent was unable, despite having valiantly attempted to do so, to persuade me that there was any really changed factual circumstances since his Honour Mr Smith made a stay order in respect of the same mining lease back in October 2015.
[38]
Counsel for the respondent fairly points out, however, that I am obliged to exercise my discretion afresh and that it remained incumbent upon the appellant to persuade me that a stay ought to be granted.^[14]
[39]
In that regard I am reminded that his Honour Mr Smith in the Citigold Corporation^[15] decision highlighted the decision of Justice Hayne in the case of Minister for Immigration and Multicultural Affairs v Legeng and Others^[16] where his Honour had this to say:

“Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudiced is one which should be considered afresh in relation to the particular case.”

[40]
As was observed by his Honour Mr Smith in his decision in Citigold Corporation^[17], it is important that in a Member of this Court exercising his or her discretion to grant a stay of any sort it is made clear that there has been no prejudgment of the substantive issue. That is to say I should make it clear that I have no established view as to whether this appeal is likely to be successful or unsuccessful.
[41]
In the present case there is no material provided by the respondent which establishes any of the following:

(a)
That the most recent plan of operations is so substantially different from any other plans which have previously been lodged by the appellant as to cause a significant change to the risk of environmental harm or damage being caused at a time prior to final determination of what the financial assurance should be.

(b)
There is no evidence of any heightened risk of environmental damage occurring.

(c)
That the continuing rehabilitation operations are in any way regressive or retrograde or causing an increased risk or hazard on the site.

(d)
That there is no evidence of any material difference in the factual matrix which the respondent and the Court has to consider in determining the appropriate amount of financial assurance.

[42]
There was no explanation as to why or for what reason the respondent had changed its expressed view with respect to the appropriateness of a stay. The difficulty for the respondent is adequately illustrated in the following exchange between Mr Dillon of Counsel for the respondent and myself (part of which is quoted above):^[18]

“HIS HONOUR: But that was before Mr Smith on the last occasion. This is what I’m having difficulty with. Nothing that you’ve told me – and I’ve invited you to do so now several times – highlights any factual matter – any matter of fact – anything in the milieu of all the facts that attach to this particular site and all the environmental risks that are inherent in its existence, even, have changed in any significant way since Mr Smith made his decision in October last year at a time when you client agreed it was then appropriate that a stay should be granted.

MR DILLON: Broadly speaking, that’s so, your Honour. However, this is the appellant’s application. It is for – brought by the appellant, not the respondent. It is for the appellant to persuade the court that a say is appropriate in all of the circumstances, and the submission of the respondent is that your Honour, in exercising the discretion afresh in a new appeal proceeding based on a new, albeit similar, plan of operations – are required to exercise that discretion afresh, and the submission is that issue estoppel – both issue estoppel and Anshun estoppel do not and cannot apply, certainly in circumstances where it’s the appellant’s own application, but more – in terms of the issue estoppel, for example, there was no final decision.”

[43]
I am satisfied by the material contained in the affidavit of Ms Kelly that the appellant would be put to significant additional expense as a consequence of the difficulty of extracting funds from New Guinea should they have to pay the totality of the disputed financial assurance at this time.
[44]
I am, however, bound to observe that nothing in the affidavit of Ms Kelly gives me any confidence that extracting an amount to meet any figure for the financial assurance will be other than difficult. It may ultimately be an unsurmountable problem.
[45]
I am also satisfied from the other affidavit material that the appellant will continue to carry out its rehabilitation responsibilities on site.
[46]
I am also particularly influenced by the absence of any evidence which suggests a heightened risk of environmental damage either imminent or in the near future.
[47]
I have, in coming to a view about this application for a stay, been mindful of the very useful observations of His Honour RS Jones DCJ in the Cougar Energy Limited v Debbie Best, Chief Executive Under the Environmental Protection Act 1994^[19] where his Honour had this to say:

“Notwithstanding that these proceedings involve an appeal against what is effectively an administrative decision, it is generally agreed that the general principles associated with the granting of a stay in usual civil litigation are applicable, subject to some variation or adjustment where necessary. By reference to cases such as Cook Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2008) Qd R 453; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; and Attorney for the State of Queensland v Farden (2011) QCA 111, the following principles seem to be established:

(1)
It is not necessary for the applicant for a stay to show special or exceptional circumstances which warrant the grant of a stay.

(2)
The fundamental justification for granting a stay pending an appeal is to ensure that the orders which might ultimately be made by the court are fully effective.

(3)
While the prospects of success on the appeal are a relevant consideration, unless it can be said that the appeal is frivolous or not arguable, the court will generally not descend into a detailed assessment of the prospects of the appeal.

(4)
Finally, will the applicant for the stay be irreparably prejudiced if the stay is not granted.”

[48]
In that case the current respondent was also a respondent.
[49]
As there is nothing in the material which suggests that the applicant is any way trying to delay the ultimate hearing of this appeal, it is within the capacity of this Court to set the matter down for hearing at the earliest opportunity.
[50]
In the present case there is a clear need to balance the competing submissions.
[51]
As set out above I believe I have carried out that exercise to the best of my ability and have come to the view that, on balance, all of the facts and circumstances attending this particular application favour granting the stay sought.
[52]
Accordingly I am satisfied that the appellant ought be granted a stay in the terms sought. Thus, I order that the original decision of the respondent dated 4 March 2016 be stayed pending determination of this appeal or until further order of the Court.
[53]
I further order that the costs be reserved.

Order:

The original decision of the respondent dated 4 March 2016 be stayed until the determination of the appeal in this matter or further order of the Court, with no further conditions, save that the current financial guarantee of $888,160 shall remain in place.

Reserve the question of costs.

WL COCHRANE

MEMBER OF THE LAND COURT

Footnotes

[1] Mt Moss Mining Pty Ltd and Chief Executive, DEHP – 16 October 2015 page 2, line 45 – page 3, line 10.

[2] Mt Moss Mining Pty Ltd v Chief Executive, Department of Environment & Heritage Protection [2015] QLC 38 page 5, line 39 – page 6, line 2.

[3] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

[4] Halsbury’s Laws of Australia – Online (2005), Chapter: General Nature and Principles of Estoppel.

[5] T (Transcript) 1 – 2 L (line) 45 – 47, T 1 – 3 L 12 – 13.

[6] T 1 – 3 L 18 – 21.

[7] T 1 – 4 L 37.

[8] T 1 – 7 L 46 – 1 – 8 L 2.

[9] T 1 – 8 L 17 – 19.

[10] T 1 – 8 L 23 – 30.

[11] T 1 – 10 L 11 – 13.

[12] T 1 – 11 L 43 to 1 – 12 L 5.

[13] T 1 – 12 L 11.

[14] T 1 – 13 L 12 – 25.

[15] Citigold Corporation Ltd v Chief Executive, Department of Environment and Heritage Protection (No. 2) [2015] QLC 50.

[16] [2001] HCA 17 [185].

[17] Citigold Corporation Ltd v Chief Executive, Department of Environment and Heritage Protection (No. 2) [2015] QLC 50 page 3.

[18] T 1 – 8 L 22 – 39.

[19] [2011] QPEC 150 [20].

Editorial Notes

Published Case Name:
Mt Moss Mining Pty Ltd v Chief Executive, Department of Environment and Heritage Protection
Shortened Case Name:
Mt Moss Mining Pty Ltd v Chief Executive, Department of Environment and Heritage Protection
MNC:
[2016] QLC 24
Court:
QLC
Judge(s):
Member Cochrane
Date:
12 Apr 2016

Appeal Status

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

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Alexander & Ors v Cambridge Credit Corporation Ltd	View on:NSWLR(1985) 2 NSWLR 685	1 citation Jump To Cite 1 - (1985) 2 NSWLR 685
Attorney-General v Fardon	[2011] QCA 111	1 citation Jump To Cite 1 - [2011] QCA 111
Citigold Corporation Limited v Chief Executive, Department of Environment & Heritage Protection	[2015] QLC 10	1 citation Jump To Cite 1 - [2015] QLC 10
Citigold Corporation Limited v Chief Executive, Department of Environment & Heritage Protection (No. 2)	[2015] QLC 50	3 citations Jump To Cite 1 - [2015] QLC 50 Cite 2 - [2015] QLC 50 Cite 3 - [2015] QLC 50
Cook Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd	(2008) Qd R 453	2 citations Jump To Cite 1 - (2008) Qd R 453 Cite 2 - (2008) Qd R 453
Cougar Energy Limited v Best	[2011] QPEC 150	2 citations Jump To Cite 1 - [2011] QPEC 150 Cite 2 - [2011] QPEC 150
Minister for Immigration and Multicultural Affairs v Jia Legeng	View on:JADE[2001] HCA 17	1 citation Jump To Cite 1 - [2001] HCA 17
Minister for Immigration v Jia Legeng	View on:JADE(2001) 205 CLR 507	1 citation Jump To Cite 1 - (2001) 205 CLR 507
Mt Moss Mining Pty Ltd v Chief Executive, Department of Environment & Heritage Protection	View on:SCLQ[2015] QLC 38	2 citations Jump To Cite 1 - [2015] QLC 38 Cite 2 - [2015] QLC 38
Port of Melbourne Authority v Anshun Pty Ltd	View on:JADE(1981) 147 CLR 589	2 citations Jump To Cite 1 - (1981) 147 CLR 589 Cite 2 - (1981) 147 CLR 589

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Alphadale Pty Ltd v Department of Environment and Heritage Protection	[2016] QLC 38	2 citations

Exit Distraction Free Reading Mode

Change Font and Font Size

Mt Moss Mining Pty Ltd v Chief Executive, Department of Environment and Heritage Protection[2016] QLC 24