New Acland Coal Pty Ltd v Ashman
[2016] QLC 29
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- Unreported Judgment
- New Acland Coal Pty Ltd v Ashman[2016] QLC 29
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New Acland Coal Pty Ltd v Ashman[2016] QLC 29
New Acland Coal Pty Ltd v Ashman[2016] QLC 29
LAND COURT OF QUEENSLAND
CITATION: | New Acland Coal Pty Ltd v Ashman & Ors and Chief Executive, Department of Environment and Heritage Protection [2016] QLC 29 |
PARTIES: | New Acland Coal Pty Ltd (applicant) |
| v |
| Frank Ashman, Lynn Ashman, John Cook, Patricia Cook, Hazel Green, Paul Mason, Janet Schick, John Schick, Jane Scholefield, Max Scholefield, Desley Spies, Kevin Spies, David Vonhoff, Cheryl Vonhoff, Fay Wieck, Grant Weick, Simon Weick (MRA level 1 objectors) and Glenn Norman Beutel, Darling Downs Environmental Council Inc., Angela Mason, Geralyn Patricia McCarron, Oakey Coal Action Alliance Inc., Merilyn Helen Plant, Sid Arthur Plant, Tanya Merilyn Plant, Steven Ward, Noel Wieck (MRA level 2 objectors) and Frank Ashman, Lynn Ashman, Russell Byron, Clean Air Queensland, Christopher Cleary, Naomi Cleary, John Cook, Patricia Cook, Paul Evans, Karen Lavin, Carolyn Lunt, John Millane, Frank Scarano, Jane Scholefield, Max Scholefield, Loretta Smith, Desley Spies, Kevin Spies, David Vonhoff, Cheryl Vonhoff, Fay Wieck, Grant Weick, Simon Weick (EPA level 1 objectors) and Glenn Norman Beutel, Pamela Aileen Harrison, Oakey Coal Action Alliance Inc., Merilyn Helen Plant, Sid Arthur Plant, Tanya Merilyn Plant, John Standley, Steven Ward, Noel Wieck (EPA level 2 objectors) and Angela Mason (EPA s 186(d) party) and Chief Executive, Department of Environment and Heritage Protection (EPA Statutory Party) |
FILE NOs: | EPA495-15 MRA496-15 MRA497-15 |
DIVISION: | General Division |
PROCEEDING: | Application for disclosure by Oakey Coal Action Alliance Inc |
DELIVERED ON: | 18 May 2016 |
DELIVERED AT: | Brisbane |
HEARD ON: | 9 May 2016 |
HEARD AT: | Brisbane |
MEMBER: | PA Smith |
ORDER: | The application for disclosure is refused. |
CATCHWORDS: | DISCLOSURE – Objections to mining lease applications and associated environmental authority – whether Land Court has jurisdiction to order disclosure in an administrative enquiry – Land Court is a creature of statute – consideration of ss 7, 7A, 10, 21 and 22 Land Court Act 2000; Rule 19 Land Court Rules 2000; s 188 Environmental Protection Act 1994 and Practice Direction 1 of 2015 – held Land Court does not have jurisdiction to order disclosure in an administrative enquiry such as this Environmental Protection Act 1944 Land Act 1962 Land Court Act 2000 Mineral Resources Act 1989 State Development and Public Works Organisation and Other Legislation Amendment Act 2015 Uniform Civil Procedure Rules 1999 Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors (No. 2) [2016] QLC 22 BHP Billiton Mitsui Coal Pty Ltd v Isdale (2015) QSC 107 Cox v Commissioner of Water Resources (1992-93) 14 QLCR 304 Legend International Holdings Inc v Taylor Aly Awaditijia & Anor (No. 4) [2016] QLC 23 Yalgan Investments Pty Ltd v Albert Shire Council (1997) 17 QLCR 401 |
APPEARANCES: | Mr P Ambrose QC for New Acland Coal Pty Ltd Mr Quirk of Counsel for the Oakey Coal Action Alliance Inc Mr P Brown and Ms J Carroll for the statutory party Mr P King, agent for the Darling Downs Environmental Council and Ms A Harrison Dr T Plant self-representing and agent for Mr S Plant and Mrs M Plant and Mr S Ward and Dr G McCarron Dr J Standley self-representing Mr N Wieck self-representing Mrs A Mason self-representing Mr G Beutel self-representing |
SOLICITORS: | Clayton Utz for the applicant Environmental Defenders Office for the Oakey Coal Action Alliance Inc |
Background
- [1]New Acland Coal Pty Ltd (NAC) has lodged mining lease applications 50232 and 700002 with the Department of Natural Resources and Mines (DNRM) to extend its coal mining operations at Acland. As objections have been lodged, the Chief Executive of DNRM has referred the applications and the objections to the Land Court pursuant to s 265(2) Mineral Resources Act 1989 (MRA). The Land Court’s role pursuant to ss 268(2) and 269 MRA is to determine the relative merits of the applications and objections, and provide a recommendation to the Minister DNRM as to whether to approve or reject the mining lease applications and if approved under what conditions.
- [2]Concurrent with this process, NAC has applied for an Environmental Authority (EA) to accompany the two mining leases proposed. As objections have been submitted to the draft EA (EPML00335713), the Department of Environment and Heritage Protection (EHP) has referred those objections to the Land Court for consideration under s 185 Environmental Protection Act 1994 (EPA). Pursuant to s 190 EPA, the Land Court must provide the Minister EHP with a recommendation as to whether the mining lease applications should be approved or rejected, and if approved what environmental conditions should be imposed having regard to the conditions in the draft EA.
- [3]I note these mining lease applications are a ‘coordinated project’ and hence pursuant to s 190(2) EPA I cannot recommend environmental conditions inconsistent with the Coordinator-General’s conditions.
- [4]The Land Court has received objections from 39 objectors under the MRA and EPA. Pursuant to Practice Direction 3 of 2015, 12 objectors have elected to fully participate in the court process as Level 2 objectors.
- [5]The hearing commenced on 7 March 2016 and is ongoing.
- [6]The current matter I have been asked to determine is an application for disclosure filed 29 April 2016 by the Oakey Coal Action Alliance Inc. (OCAA), a Level 2 objector under the MRA and EPA. From its submissions OCAA is seeking the following documents be provided by NAC:[1]
- Ngara noise logger raw data referred to in two reports by Mr Moore (a noise expert retained by NAC for self-monitoring purposes);
- Complaints monitoring documents relied on by Mr Elkin (noise expert retained by NAC to provide evidence in this hearing) in his further statement regarding his investigation into the ‘evolution’ of NAC’s noise monitoring and management;
- Acland Pastoral Company’s TEOM and meteorological data for the period March 2014 and December 2015;
- Acland Pastoral Company air quality monitoring data at the Jondaryan Rail Loading Facility on 5 specific dates.
- [7]NAC has objected to the production of these documents on various grounds.[2] The main thrust of NAC’s arguments is that the Land Court does not have jurisdiction to make an order for disclosure and if it does, it is not appropriate to order disclosure in these types of matters, and further this is a classic case of fishing.
Jurisdictional issues
- [8]OCAA submit that the Land Court has jurisdiction to order disclosure pursuant to Rule 19(2)(b)(iv) Land Court Rules (LCR) and pursuant to Practice Direction 1 of 2015.[3]
- [9]It is submitted that Rule 19(2)(b)(iv) provides a direct power for the Land Court to order disclosure; while Practice Direction 1 of 2015 incorporates the procedures in the LCR to referred matters (such as this matter) and where there is a gap in the procedures provided by the LCR, the UCPR disclosure provisions apply.
- [10]OCAA submits that the Land Court also has general powers to inform itself in any way it considers appropriate (s 7 Land Court Act 2000 (LCA)) and has all the powers of the Supreme Court (s 7A LCA).
- [11]At the hearing of this application Counsel for OCAA also submitted (after I had raised this section with him) that s 188(1) EPA would also provide power for the Land Court to order disclosure in this matter.[4]
- [12]NAC counters that Rule 19 LCR provides a source of power for the Land Court to order disclosure in ‘proceedings’ but as this is a referred matter and not a ‘proceeding’, Rule 19 has no applicability.
- [13]NAC submits that Practice Direction 1 of 2015 has been issued by the President of the Land Court pursuant to her power to issue directions under s 22(2) LCA. It is submitted that s 22 is not a source of power for the making of rules, only procedural directions about how the rules are to operate. Section 21 LCA is the rule making power and no rules under this section have been made providing for disclosure in referred matters such as this.
- [14]NAC also submits that s 10 LCA and s 188(1) EPA do not provide power to the Land Court to make disclosure orders as those sections only provide authority to make orders where the Land Court already has jurisdiction to make orders, they are not a source of power in themselves.[5]
Assessment of jurisdictional issues
- [15]The Land Court’s jurisdiction to order disclosure in referred matters has been clouded since the Supreme Court decision in BHP Billiton Mitsui Coal Pty Ltd v Isdale.[6] The crux of this decision is that when the Land Court is assessing mining lease applications and associated objections referred to it under the MRA and EPA, it is not conducting ‘proceedings’ but rather an ‘administrative enquiry’. The Supreme Court determined that Rule 13 LCR (which provides for disclosure in accordance with the UCPR) and Rule 4 (which applies the UCPR where there is a gap in the LCR) were not applicable to referred matters as Rules 4 and 13 applied only to ‘proceedings’ and not to ‘administrative enquiries’.
- [16]Following the BHP Billiton decision amendments were made to the Land Court Act 2000 by the State Development and Public Works Organisation and Other Legislation Amendment Act 2015. The LCA was amended to provide for judicial immunity when the Land Court was performing an administrative function and also s 21 LCA was amended to provide for a specific rule making power for the Land Court when it was exercising its administrative functions, including rules providing for costs and disclosure.[7] No such rules have yet been made.
- [17]The Land Court is a statutory court and its jurisdiction and powers are conferred by statute. The Land Court therefore cannot make costs or disclosure orders without statutory authority.[8]
- [18]The President of the Land Court has recently handed down two decisions regarding the Land Court’s lack of jurisdiction to award costs in referred matters, since the BHP Billiton decision. Both decisions are relevant as to whether the Land Court has jurisdiction to order disclosure in referred matters.
- [19]In Adani Mining Pty Ltd v Land Services of Coast and Country Inc & Ors (No2)[9] the President held that Land Court Rules providing authority for the Land Court to act in ‘proceedings’ do not apply to referred matters:
“[8] In BHP Billiton Mitsui Coal Pty Ltd v Isdale, the objectors lodged objections to an application by BHP for additional surface area for a mining lease under the MRA and the associated environmental authority under the EPA. The matters were referred to the Land Court for hearing of the applications and objections. At an interlocutory stage the Land Court ordered BHP to provide disclosure. BHP sought judicial review of the Land Court’s decision on the basis that the Land Court did not have the power to make an order for disclosure.
[9] The Supreme Court held that when the Land Court hears objections to mining lease applications and associated environmental authorities it does not conduct a proceeding but rather undertakes an administrative function. The Supreme Court referred to the Land Appeal Court decision of Dunn v Burtenshaw and relied upon the fact that in such matters the Land Court does not make a decision determinative of future rights but merely provides advice and recommendations to the relevant Ministers who ultimately decide whether the mining lease or environmental authority should be issued. As set out above, mining lease and environmental authority applications and objections are referred to the Land Court by the relevant departments. The Supreme Court noted that various rules in the Land Court Rules 2000 (LCR) regarding initiating proceedings were not consistent with these matters being referred to the Court. Further, disclosure was inapt for these types of matters where the Land Court must take into account matters such as the public interest which may not be in issue between the parties. The Supreme Court determined that because LCRs 13 and 4 applied to proceedings, not referrals, those rules did not enliven power in the Land Court to order disclosure in matters where the Land Court does not adjudicate upon matters in issue but provides advice to an administrative decision matter.
…
[13] Following the decision in BHP Billiton, it is apparent that where mining lease and environmental authority applications and associated objections have been referred to the Land Court for assessment, the Land Court is conducting an administrative enquiry and not a proceeding. The Supreme Court held therefore that rr 13 and 4 LCR did not apply to referral matters as those rules were applicable to proceedings. I consider that it follows that references in any Land Court rule to proceedings render those particular rules inoperative where the Court is conducting an administrative enquiry. Unless there is some indication to the contrary, it would be illogical and inconsistent with authority to decide that some of the Court’s rules (those referring to proceedings, such as rr 13 and 4) did not apply to administrative enquiries but other rules referring to proceedings did apply.”
- [20]In Legend International Holdings Inc v Taylor Aly Awaditijia & Anor (No. 4)[10] the President held that the Land Court did not have any statutory or inherent jurisdiction to award costs in referred matters. The President said:
“[14] In Wyatt v Albert Shire Council the Full Court said that “[t]he power to award costs of proceedings is entirely the creation of statute.” This statement was endorsed by the Land Appeal Court in Yalgan Investments Pty Ltd v Albert Shire Council.
[15] The Land Court is established by s 4(1) of the LCA. In Cox v Commissioner of Water Resources the Land Appeal Court said, when referring to the Land Court, that “Any power which the Court has must be conferred by a statute”. The Land Appeal Court also said:
“Undoubtedly an inferior court has power to regulate its own procedure, even though that power is not as extensive as is held by a superior court ….. But when the jurisdiction of a court is limited by statute its procedures have to be found within the statute or rules made under a rule-making power created by statute. In other words, such an inferior court does not have the power to create its own procedures.”
[16] The Land Appeal Court held in Cox that the Land Court did not have an inherent power to order discovery and there was at that time no specific power provided to the Court in that regard.
[17] In Gallo v Department of Environment and Resource Management (No. 2) Member Evans, sitting as a Member of the Land Appeal Court, confirmed that the Land Court and the Land Appeal Court are inferior courts. Member Evans also said:
“The source of a statutory inferior court’s jurisdiction is statute. If there is no statutory provision, which either expressly or by necessary intendment, gives the court jurisdiction, then it will not possess it.”
[18] Section 5(1) of the LCA states:
“The Land Court has the jurisdiction given to it under this Act or another Act.”
[19] As the Land Court is an inferior court created by statute, I consider that the Court has no jurisdiction to award costs in a matter unless that jurisdiction is given to it by statute. Section 34 of the LCA gives the Land Court statutory jurisdiction or authority to award costs but s 34 only applies to proceedings and this administrative enquiry is not a proceeding.
[20] As the jurisdiction to award costs is entirely a creature of statute and the Land Court only has jurisdiction given to it by statute, there is no inherent authority in the Land Court to award costs. With respect to administrative enquiries such as this, there is no jurisdiction or authority to award costs provided to the Land Court by relevant statutes such as the LCA, MRA or EPA.
[21] Section 7A(1) LCA provides the Land Court with all the powers of the Supreme Court when exercising jurisdiction conferred by this Act or another Act,. However this section does not grant jurisdiction to the Land Court to order costs. In Australian Health Insurance Association Ltd v Esso Australia Pty Ltd, Black CJ said:
“There is a distinction between the conferral of jurisdiction and the grant of a power. Jurisdiction in this context means the authority a court has to decide a matter and power goes to the exercise of that authority. Without authority there can be no valid exercise of power … .”
[22] Section 7A(1) confers the powers of the Supreme Court onto the Land Court when it is exercising its jurisdiction under the LCA or other Act. Section 7A(1) of itself does not create a jurisdiction or authority to award costs.
[23] The respondent noted that the State Development and Public Works Organisation and Other Legislation Amendment Act 2015 came into force on 22 July 2015 to deal with the uncertainty surrounding the LCA and the LCR and their applicability to referral matters.
[24] In particular the respondent noted the changes to s 21(1)(b) LCA whereby rules can now be made that are necessary or convenient, including for a function or power conferred on the Court by the LCA or another Act. In addition, a new s 21(3) was inserted to authorize the making of rules for the procedures when the Court is exercising an administrative function including “(a) rules providing for costs in relation to the exercise or performance of an administrative function”. The respondent noted that although to date no such rules have been made, s 22 LCA provides authority for the President to issue directions about the procedures of the court. On 27 July 2015 I issued Practice Direction 1 of 2015 which provides that the procedures to be applied to referral matters are the same as those outlined in the Land Court Rules and when not covered by the LCR, the Uniform Civil Procedure Rules 1999 (UCPR) will apply. The respondent submitted that, flowing from s 21(3)(a), rules providing for procedures include rules providing for costs and, therefore, costs are procedural in nature. As s 22(2) provides power for the President to issue directions about the procedures of the Court, Practice Direction 1 of 2015 incorporated the UCPR costs provisions under Chapter 17A into the procedures applicable to administrative enquiries such as this.
[25] I do not accept that submission. Sections 21(2) and s 21(3) LCA do not provide or have the effect that costs are procedural in nature. Rather, the effect of s 21(3) is that it operates as a statutory grant of power for rules to be made to provide for costs in relation to the exercise or performance by the Court of an administrative function.
[26] As identified in the applicant’s submission, the Supreme Court of Queensland is a superior court and has unlimited jurisdiction in law and equity, subject only to the Commonwealth Constitution. The District Court and Magistrates Court (and also the Supreme Court on a statutory basis) obtain their jurisdiction to award costs in proceedings before those Courts via ss 3, 5 and 15 Civil Proceedings Act 2011. These Courts do not obtain their jurisdiction to award costs from Chapter 17A UCPR. The UCPR merely provides rules to be followed when exercising the costs jurisdiction provided by the Civil Proceedings Act 2011.
[27] Similarly with the Land Court, the importation of the procedures in the UCPR, where LCR procedures do not apply to referred matters (via Practice Direction 1 of 2015), does not create jurisdiction to award costs in these matters. If no costs jurisdiction exists, one cannot be created by the Land Court via its powers to make directions about procedures granted in s 22 LCA. The Land Court cannot create or give to itself jurisdiction where jurisdiction has not been expressly or implicitly provided by statute.
[28] This conclusion is consistent with the terms of s 21(3)(a) LCA. The subsection clearly contemplates that, if costs are to be awarded by the Court when exercising an administrative function, it will be necessary that rules be made to provide for costs. Such rules cannot be made by the Land Court but are to be made by the Governor-in-Council, with the concurrence of the Chief Justice and the President (s 21(1) LCA).”
- [21]With respect to Rule 19(2)(b)(iv) LCR, this rule clearly states that it applies to ‘proceedings’. It provides authority for the Land Court to make an order or direction about the conduct of the ‘proceedings’. It is limited to ‘proceedings’ and as per the reasoning of the President in Adani (No2), it does not apply to referred matters.
- [22]With respect to Practice Direction 1 of 2015, it incorporates the procedures in the UCPR into referred matters where there is a gap in the LCR but as per the President’s decision in Legend, this Practice Direction does not and cannot confer power or jurisdiction on the Land Court it does not already have.
- [23]From the Land Appeal Court decision of Cox v Commissioner of Water Resources[11] the Land Court does not have an inherent power to order discovery and hence it cannot order disclosure without a specific power being provided to it. Hence Practice Direction 1 of 2015 cannot and does not purport to provide jurisdiction or powers to the Land Court it does not already have, it merely prescribes procedures by which existing powers are to be exercised.
- [24]Sections 5(1) and 10 LCA provide:
“5 Jurisdiction of the Land Court
- (1)The Land Court has jurisdiction given to it under this Act or another Act.
…..
10 Terms of Orders
The Land Court may make an order, give leave or do anything else it is authorised to do on the terms the court considers appropriate.”
- [25]Section 10 must be read as subject to section 5 LCA. The Land Court as a creature of statute cannot do anything it considers appropriate. It must have the jurisdiction first to make an order, before it can make an order it considers appropriate. As it does not have statutory jurisdiction to make an order for disclosure in referred matters, it cannot make such an order under s 10 LCA, even if it considered such an order was appropriate.
- [26]Section 188 EPA provides;
“188 Objections decision hearing
- (1)The Land Court may, of its own initiative, make orders or directions it considers appropriate for a hearing for the objections decision (the objections decision hearing).
- (2)Without limiting subsection (1), the Land Court may make an order or direction that the objections decision hearing happen at the same time as a hearing under the Mineral Resources Act for the relevant mining tenure.”
- [27]Section 188 EPA confers power on the Land Court to make orders or directions it considers appropriate regarding the hearing of objections, such as hearing both the MRA and EPA applications and objections in the same hearing.
- [28]Similarly to s 10 LCA, s 188(1) EPA does not of itself confer specific jurisdiction upon the Land Court to make orders for disclosure or indeed costs. It provides authority similar to s 10 LCA for the Land Court to make orders and directions it considers appropriate but only where the Land Court has jurisdiction to do so.
- [29]Section 7 and 7A(1)(a) LCA provide:
“Division 2 General Powers
7 Land Court to be guided by equity and good conscience
In the exercise of its jurisdiction, the Land Court―
- (a)is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
- (b)must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.
7A Land Court has power of the Supreme Court
- (1)The Land Court has, for exercising jurisdiction conferred under this Act or another Act, all powers of the Supreme Court, and may in a proceeding before the Land Court, in the same way and to the same extent as may be done by the Supreme Court in a similar proceeding―
- (a)grant any relief or remedy;”
- [30]As per the President’s decision in Legend there is a distinction between the conferral of jurisdiction and the granting of powers to be exercised in that jurisdiction. Section 7A(1) LCA confers the powers of the Supreme Court onto the Land Court when it is exercising its jurisdiction under the LCA or other Act. There is precondition on the exercise of the powers provided in s 7A(1); the power is only conferred when the Land Court is exercising its jurisdiction conferred under the LCA or another Act. Section 7A(1) provides powers for the Land Court to exercise within its jurisdiction but of itself it does not create a jurisdiction or authority to order disclosure.
- [31]Section 7 LCA is similarly worded – In the exercise of its jurisdiction – is a precondition to the Land Court acting pursuant to s 7. The words in s 7 LCA are not a source of power or jurisdiction, they merely offer guidance as to the exercise of a power already conferred.[12]
- [32]Consequently in my view the Land Court does not have jurisdiction to make an order for disclosure in referred matters until the LCA (or other referring Acts) is amended or Rules providing for disclosure are made pursuant to s 21(3)(b) LCA. As I have no jurisdiction to order disclosure in this referred matter, there is no need to assess the relative merits as to whether the documents sought should be disclosed.
ORDER
The application for disclosure is refused.
PA SMITH
MEMBER OF THE LAND COURT
Footnotes
[1] OCAA’s Outline of Submissions dated 6 May 2016 at paragraph (25).
[2] NAC’s Outline of Submissions dated 29 April 2016.
[3] OCAA’s Outline of Submissions at (3).
[4] Transcript pages 22-53 and 22-71.
[5] See NAC’s Outline of Submissions at (3) and transcript at page 22-64.
[6] (2015) QSC 107.
[7] Section 21(3) of the amended LCA.
[8] See Yalgan Investments Pty Ltd v Albert Shire Council (1997) QLCR 401 with respect to costs, and Cox v Commissioner of Water Resources (1992-93) 14 QLCR 304 with respect to disclosure.
[9] (2016) QLC 22 at (8-9)(13) – references omitted.
[10] (2016) QLC 23 from paragraphs (14) to (28) – references omitted.
[11] (1992-93) 14 QLCR 304.
[12] See Cox’s case from page 317 for an analysis by the Land Appeal Court that similar wording to s 7 LCA found in s 41(5) Land Act 1962, did not provide jurisdiction for the Land Court to order discovery.