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New Acland Coal Pty Ltd v Ashman (No. 3)[2017] QLC 1

New Acland Coal Pty Ltd v Ashman (No. 3)[2017] QLC 1

LAND COURT OF QUEENSLAND

CITATION:

New Acland Coal Pty Ltd v Ashman & Ors (No. 3) [2017] QLC 1

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

(Statutory Party)

FILE NO/s:

EPA495-15

MRA496-15

MRA497-15

DIVISION:

General division

PROCEEDING:

Application for new evidence/reopening by New Acland Coal Pty Ltd

DELIVERED ON:

2 February 2017

DELIVERED AT:

Brisbane

HEARD ON:

2 February 2017

Prior written submissions provided

HEARD AT:

Brisbane

MEMBER:

PA Smith

ORDER/S:

  1. The hearing of these matters is reopened to lead evidence with respect to the IESC 2016 Advice and documents referred to in that Advice.
  1. By 4:00pm on 3 February 2017, New Acland Coal Pty Ltd (NAC) must file in the Land Court and provide to all objectors copies of all reports provided by NAC to the IESC and referred to in the IESC 2016 Advice.
  1. All parties are permitted to call fresh evidence, including expert and lay evidence, from such expert and lay witnesses as each party considers appropriate in light of the IESC 2016 Advice and reports provided by NAC to the IESC as referred to in the IESC 2016 Advice.
  1. The media release of the Minister for Natural Resources and Mines dated 12 October 2016 regarding coal workers’ pneumoconiosis be admitted into evidence.
  1. Screenshot of the webpage article “Reckless job destroying legislation passed” dated 10 November 2016, annexed to Dr Plant’s submissions on water reform legislation be admitted into evidence. 

CATCHWORDS:

PRACTICE AND PROCEDURE – application to reopen the hearing – where IESC groundwater report released after hearing had concluded – whether the interests of justice are better served by allowing or rejecting reopening application

Environmental Protection Biodiversity Conservation Act 1999 (Cth), s 24D, s 24E, s 131AB

Land Court Act 2000, s 7

Citigold Corporation Ltd v Chief Executive, Department of Environment and Heritage (No 3) (2016) QLC 21

Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd & Ors (2007) QCA 338

Reid v Brett (2005) VSC 18

APPEARANCES:

Mr P Ambrose QC and Mr B Job of Counsel, instructed by Clayton Utz, for New Acland Coal Pty Ltd

Mr S Holt QC, instructed by Environmental Defenders Office, for the Oakey Coal Action Alliance Inc

Ms J O'Connor of Counsel, instructed by Litigation Unit, Department of Environment and Heritage Protection, for the statutory party

Mr P King, agent for the Darling Downs Environmental Council

Dr T Plant self-representing and agent for Mr S Plant and Mrs M Plant and Mr S Ward

Dr J Standley self-representing

Mr N Wieck self-representing

Mrs A Mason self-representing

Mr G Beutel self-representing

Dr G McCarron self-representing

Ms A Harrison self-representing

Overview

  1. [1]
    On 19 December 2016 the applicant filed a General Application and supporting affidavit in these matters.
  1. [2]
    By its application, the applicant, New Acland Coal Pty Ltd (“NAC”) seeks the followings orders:
  1. Leave to introduce new evidence, being the report titled "Advice to decision maker on coal mining project IESC 2016-081; New Acland Coal Mine Stage 3 (EPBC 2007/3423) - Expansion" dated 14 December 2016 (2016 IESC Final Advice); or
  1. In the alternative, leave to reopen the Applicant's case to tender the 2016 IESC Final Advice; and
  1. The Court admit the following documents into evidence:
  1. the media release by the Minister for Natural Resources and Mines of 12 October 2016 regarding coal workers' pneumoconiosis, annexed to the email of the Deputy Registrar to the Parties sent 12 November 2016; and
  2. Screenshot of webpage article "Recklessjob destroying legislation passed" dated 10 November 2016, annexed to Dr Tanya Plant's submissions on water reform legislation (filed and served via email on 13 December 2016).
  1. [3]
    The application was mentioned when the parties were before the Court on 12 January 2017. A timetable was ordered for the filing and service of submissions and the matter was then to be either determined on the papers or at a hearing on 2 February 2017 should any party request an oral hearing.
  1. [4]
    As the parties were unable to agree as to the form of orders that the Court should make in response to NAC’s application, the objector Oakey Coal Action Alliance Inc. (“OCAA”) requested an oral hearing on 2 February 2017 to decide the application and make appropriate orders.
  1. [5]
    I have had the benefit of closely considering the written submissions made by the parties prior to 2 February 2017.
  1. [6]
    NAC provided its written submissions with respect to its application on 12 January 2017. Helpfully, NAC set out a summary of its submission as follows:
  1. This document comprises the Applicant's submissions in support of its Application filed on 19 December 2016 with respect to the 2016 IESC Final Advice.
  1. In summary, the Applicant submits that:
  1. (a)
    the 2016 IESC Final Advice should be admitted into evidence as a relevant exhibit;
  1. (b)
    the weight to be given to the 2016 IESC Final Advice is no less than the weight given to the preliminary Superseded IESC Advices that were tendered into evidence by the Respondents as follows:
  1. (i)
    2014 IESC Advice, tendered into evidence by OCAA; and
  1. (ii)
    2015 IESC Advice, tendered into evidence by Dr Tanya Plant; and
  1. (c)
    like the preliminary Superseded IESC Advices, the 2016 IESC Final Advice is not to be relied upon as truth of its contents, but rather that as a matter of fact, the preliminary Superseded IESC Advices (which the Respondents have materially relied upon) have been superseded.
  1. The Applicant considers that, in an administrative inquiry like the present matter, it is not necessary for the Applicant to re-open its case to have the 2016 IESC Final Advice admitted into evidence. Further, section 7 of the LCA allows the Court to inform itself in the way it considers appropriate and the Applicant submits that the admission of the 2016 IESC Final Advice into evidence is a good example of the appropriate use of this provision without requiring the matter to be re-opened. In this regard, in the Adani matter in this Court in similar circumstances, the then President of this Court became aware of the EPBC Act approval after the closing submissions but before her recommendation and considered that it was a relevant consideration and admitted such approval into evidence without requiring any formal re-opening of the matter. This was also done without any requirement to recall experts with respect to the matters covered by the EPBC Act approval so that the experts could examine the “correctness” of the decision. The Applicant considers that the same position should be adopted with respect to the 2016 IESC Final Advice which is a precursor to the EPBC Act approval, which is anticipated very shortly.
  1. In the alternative, the Applicant considers that the exercise of the Court’s discretion to allow admission of the 2016 IESC Final Advice is appropriate in that:
  1. (a)
    the further evidence is so material that the interests of justice are best served by allowing its admission;
  1. (b)
    the further evidence could affect the result of the case (or at least one important aspect of it);
  1. (c)
    the further evidence could not by reasonable diligence have been discovered earlier; and
  1. (d)
    no prejudice would be caused to the other parties.
  1. As outlined below and in the Schedules to these submissions, the objectors relied significantly upon the Superseded IESC Advices and urged the Court to rely upon them. The Applicant accordingly submits that if the Court does not accept the 2016 IESC Final Advice into evidence, it would be led into error should it rely (as urged by OCAA and other Respondents) upon the Superseded IESC Advices, in that the 2016 IESC Final Advice alters the view of the IESC outlined in the Superseded IESC Advices with respect to significant matters such as faulting and whether the model had predicted the maximum extent of impacts.
  1. [7]
    Various objectors filed and served submissions in response to the application by NAC and NAC’s submissions. I am generally impressed by the logic and conciseness of a number of the objectors’ submissions which, in their lay way of expressing their views in what can be a complex legal area, they have rather well summarised the situation. I quote, for example, the submissions made by Dr Steven Ward of 23 January 2017 as follows:
  1. It appears unreasonable for the applicant to enter the Independent Expert Scientific Committee (IESC) report on the proposed New Acland Coal Mine Stage 3 (IESC 2016-081) significantly after the conclusion of evidence.
  1. The applicant’s current application is in direct contrast to their ongoing demands to expedite proceedings, allegedly due to diminishing Stage 2 coal reserves and consequential impacts on jobs. This has effectively truncated the available resources and opportunities for fairness for objectors at various junctures, to the advantage of the applicant. The approval of the applicant’s application to include the 2016 IESC report appears to be another example of the applicant taking further “bites of the cherry” where this has not been afforded to other parties.
  1. Nonetheless, I recognize the risk that His Honour’s recommendation may be undervalued if the 2016 IESC report is not also considered in His Honour’s deliberations of evidence. Therefore, it seems appropriate for the Court to consider the 2016 IESC report in this instance.
  1. However, it needs to be fully understood how such marked changes in the view of the IESC (from the particularly damning IESC advices in 2014 and 2015) have been motivated. This appears particularly pertinent given the significant changes in the IESC personnel since the 2015 IESC report on the New Acland Stage 3 application and the distinct lack of detail in the 2016 IESC report.
  1. I am also concerned that the applicant chose not to disclose the supporting 2016 IESC report data during the proceedings, since it is clearly relevant to the matter in-hand and could have avoided the current situation.
  1. To accept this new evidence without appropriate consideration of the supporting data by the Court and parties would appear to prejudice the objectors, and restrict the Court’s ability to fully consider the information in formulating its recommendation. It seems akin to relying fully on an executive summary of a document, instead of the full in-depth content.
  1. I submit that proceedings with regard to groundwater should be re-opened so that the new evidence can be properly considered by all parties and their respective experts, allowing for submissions an (sic) cross-examination. Otherwise there appears to be a bias toward this evidence, an unfair advantage to the applicant and a prejudice against other parties.
  1. [8]
    I broadly agree with Dr Ward’s submissions and the like submissions of other objectors.
  1. [9]
    The objector OCAA went in to some detail in examining the relevant law and factual context relating to NAC’s application. OCAA provided the following useful summary:
  1. By way of application dated 19 December 2016 the Applicant seeks to have a document titled “Advice to decision maker on coal mining project IESC 2016-081: New Acland Coal Mine Stage 3 (EPBC 2007/3423)- Expansion” and dated 14 December 2016 (IESC 2016 Advice) received into evidence either by leave of the Court or by reopening evidence.
  1. The Applicant submits that the IESC 2016 Advice should be given the same weight as the IESC 2014 Advice and IESC 2015 Advice.
  1. The IESC 2014 Advice and IESC 2015 Advice were significant documents in this objections hearing, in which:
  1. a)
    The IESC 2014 Advice (and the Applicant’s response to that advice) was available prior to the engagement of expert witness and the expert witnesses for OCAA were briefed with that advice;
  1. b)
    The IESC 2014 Advice was available prior to the notification of issues for experts to consider in their joint meetings;
  1. c)
    The IESC 2015 Advice and the IESC 2014 Advice, were available to the groundwater experts prior to joint meetings and included in the joint report;
  1. d)
    The IESC 2014 Advice and IESC 2015 Advice were referenced for consistency with the opinion of independent groundwater experts called by OCAA in their individual reports;
  1. e)
    The IESC 2014 Advice and IESC 2015 Advice were received into evidence following the above rigorous analysis by experts and experts were made available for cross-examination on their opinions with respect to those advices;
  1. f)
    The rigorous analysis included, following the request of this Court, tables prepared by the groundwater experts as to the extent the concerns raised in IESC 2014 Advice and IESC 2015 Advice had been addressed;
  1. g)
    The IESC featured prominently in the proceedings and was the term IESC was used over 180 times in the transcript of the hearing before evidence closed on 12 August 2016;
  1. h)
    The OCAA prepared its submissions on groundwater based on the expert opinion subject to rigorous cross-examination, including in respect of the IESC 2014 Advice and IESC 2015 Advice;
  1. i)
    Final submissions on evidence were made on 7 October 2016.
  1. Although this Court is not formally bound by the rules of evidence it must act according to equity and good conscious, and must provide natural justice, including procedural fairness.
  1. In deciding whether to reopen the evidence this Court must consider the interests of justice, including any prejudice a party would suffer.
  1. It would be highly prejudicial to OCAA and a gross breach of procedural fairness for the Court to allow into evidence the IESC 2016 Advice in circumstances where:
  1. a)
    the Applicant has access to the documents on which the IESC 2016 Advice is based but the other parties do not;
  1. b)
    the author/s of the IESC 2016 Advice is unknown and is not a witness in the objection hearing;
  1. c)
    no witness is being made available for cross examination on the IESC 2016 Advice, its contents or any opinions contained therein, nor the circumstances that led to the IESC 2016 Advice;
  1. d)
    the expert witnesses who gave extensive evidence to this Court on the consistency or otherwise of their opinion with the earlier IESC advices would not be given any opportunity to advise if the IESC 2016 Advice alters any of their opinions and, if so, to what extent; and
  1. e)
    as a result, in any consideration of the IESC 2016 Advice, the Court would not have the benefit of expert opinion about the advice, and therefore its reliability and any appropriate weight to be given.
  1. The IESC 2016 Advice should only be accepted into evidence if the same procedure is followed as for the earlier IESC advices, that is:
  1. a)
    the documents on which the IESC 2016 Advice relies should be made available to the parties and their experts so that they can consider the basis of the opinions stated;
  1. b)
    notification of any amended or supplementary issues;
  1. c)
    expert meetings, joint report and individual reports;
  1. d)
    cross examination of experts; and
  1. e)
    supplementary submissions.
  1. If this Court is prepared to accept the IESC 2016 Advice into evidence then, at a minimum it should be on the basis of the draft orders attached to the affidavit of Mr Sean Ryan affirmed 23 January 2017.
  1. In respect of the orders sought by the Applicant to admit the other two documents:
  1. a)
    OCAA did not maintain issues in respect of Black Lung and therefore does not support or oppose the admission of the media release by the Minister for Natural Resources and Mines of 12 October 2016 regarding coal workers’ pneumoconiosis, annexed to the email of the Deputy Registrar to the Parties sent 12 November2016; and
  1. b)
    OCAA opposes the admission of “screenshot of webpage article ‘Reckless job destroying legislation passed’ dated 10 November 2016, annexed to Dr Tanya Plant’s submissions on water reform legislation (filed and served via email on 13 December 2016)” as no party has demonstrated that it is in the interests of justice to admit the document into in evidence. (citations omitted)
  1. [10]
    On 25 January 2017 NAC provided reply submissions which relevantly stated in summary as follows:
  1. This reply does not focus on the legal issues raised by the Respondents in their submissions, particularly in relation OCAA's allegation that it would be “highly prejudicial” to OCAA and a “gross breach” of procedural fairness for the Court to allow admission of the 2016 IESC Final Advice into evidence without allowing OCAA's expert groundwater witnesses to review the documents referred to in the 2016 IESC Final Advice and provide further evidence in relation to those documents. This is because:
  1. (a)
    in light of the Court’s preliminary indication given at the hearing on 12 January 2017 that it considered the 2016 IESC Final Advice should be admitted into evidence and that it was likely that this would lead to the Court calling for the groundwater documents referred to in that advice; and
  1. (b)
    the Respondents’ submissions, on the whole, indicating a general acceptance about the 2016 IESC Final Advice being admitted into evidence provided that the documents referred to in the advice be made available,

the Applicant proposes to provide the groundwater documents referred to in the 2016 IESC Final Advice in the manner outlined in the Applicant's Draft Orders.

  1. Given that the Applicant proposes to provide the groundwater documents referred to in the 2016 IESC Final Advice, it is also not necessary for this reply to address the legal principles generally outlined in OCAA’s submissions at Part C, paragraphs 39 to 54, or the matters in Part D, paragraphs 55 to 92 (some of which go to the weight to be ultimately given to the 2016 IESC Final Advice and as mentioned below this is not a relevant consideration until the proposed further evidence has been given). It is also not necessary for this reply to respond to OCAA's submission in paragraphs 102 to 109 about the admission of the EPBC Act approval in the Adani case.
  1. Given the above and the content of the submissions of the other Respondents which do not focus on the relevant legal principles and contain matters that are not relevant to the application to admit the 2016 IESC Final Advice or repeat matters in OCAA’s submissions, this reply is centred on the draft orders proposed by OCAA.
  1. In its application, the Applicant merely sought to have admitted the 2016 IESC Final Advice. Additional evidence by way of the additional reports referred to in the 2016 IESC Final Advice and further evidence from experts is now sought by the Respondents (or most of them) and the Applicant will not oppose this proposal.
  1. In OCAA’s submissions (and the submissions of some of the other Respondents), it was suggested that the 2016 IESC Final Advice did not supersede the previous advices, the Respondents started to distance themselves from the 2016 IESC Final Advice based on the latest composition of the IESC and also suggested that they had primarily relied upon the groundwater experts and not the views of the IESC. The Applicant disputes the position taken by OCAA and some of the Respondents in this regard, however, considers that these are more matters relating to the weight of the 2016 IESC Final Advice and any response to the position of the Respondents will be more appropriately made following the conclusion of the proposed additional evidence. In addition, the Applicant considers that a further document which is proposed to be provided pursuant to the Applicant's Draft Orders (in Order 3h.) is also relevant to the issue as to whether the 2016 IESC Final Advice has overtaken the previous IESC advices.

Draft Orders

  1. The Applicant has reviewed the draft orders proposed by OCAA and generally agrees with the overall process proposed. However, the Applicant proposes the following changes…” (citations omitted)
  1. [11]
    Having quickly summarised the submissions in this matter, it is appropriate now, given the orders that I propose to make, to set out details relating to the background of this application; the legal principles to be considered in determining the application; and the question of prejudice to the objectors if the IESC 2016 Advice is received on either of the alternate narrow terms proposed by NAC in its application of 19 December 2016.[1]

Background

  1. [12]
    On or about 23 April 2007 the New Acland Mine[2]was referred to the Federal Government under the Environmental Protection Biodiversity Conservation Act 1999 (Cth) (EPBCA).[3]
  1. [13]
    On or about 17 October 2013 the Minister for the Environment decided that sections 24D and 24E of the EPBCA (the water trigger) are controlling provisions for the proposed action.[4]
  1. [14]
    Accordingly, pursuant to section 131AB of the EPBCA “Before the Minister decides whether or not to approve, for the purposes of the controlling provision, the taking of the action, the Minister must obtain the advice of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development” (IESC).
  1. [15]
    In April 2014 the IESC issued its first advice (IESC 2014 Advice).[5]
  1. [16]
    OCAA filed and served notice of expert witnesses and notice of issues on 27 November 2015.
  1. [17]
    The OCAA expert witnesses in respect of groundwater were briefed with the IESC 2014 Advice and NAC’s response to the IESC 2014 Advice.[6]
  1. [18]
    OCAA’s notice of issues had the benefit of the IESC 2014 Advice which was explicitly referred to.[7]
  1. [19]
    In December 2015 the IESC issued its second advice (IESC 2015 Advice).[8]
  1. [20]
    In January 2016 the nominated groundwater experts met to produce joint reports.
  1. [21]
    On 16 February 2016 the experts delivered a joint report which included reference to the IESC 2015 Advice[9] and NAC’s EIS documents that responded to the IESC 2014 Advice.[10]
  1. [22]
    The individual reports of the expert witnesses called by OCAA referred to the IESC 2014 Advice and IESC 2015 Advice.[11] The expert witnesses called by NAC also referred to the IESC 2015 Advice and EIS response to the IESC 2014 Advice.[12]
  1. [23]
    At the commencement of the hearing of evidence on 7 March 2016, Dr Plant tendered the IESC 2015 Advice.[13]
  1. [24]
    On 11 March 2016 NAC responded to the Commonwealth Department of Environment (DoE) regarding the IESC 2015 Advice.[14]
  1. [25]
    On 29 March 2016 in the cross-examination of Mr Duncan Irvine, OCAA tendered NAC ‘s response to the IESC 2015 Advice (IESC 2016 Response).[15]
  1. [26]
    On 31 March 2016 this Court made the following request of Mr Irvine:[16]

MEMBER SMITH:  What I am struggling with at the moment is to piece together the various notations made by the IESC and the response to those issues that have been raised. And I was wondering if it was possible to, in effect, mark up a copy of those two IESC reports showing the response – the issues that have been positively responded to, negatively responded or not responded to at all from within your area of expertise, just so I could have it all collated into one area?

MR IRVINE:   Yes. I’ll be able to do that.

  1. [27]
    On 11 April 2016 NAC filed an affidavit of Mr Andrew Durick which, inter alia, referred to the IESC 2015 Advice and IESC 2016 Response.[17]
  1. [28]
    On 20 April 2016 NAC filed a further affidavit of Mr Durick which, inter alia, exhibited a combined review of the IESC 2015 Advice and IESC 2016 Response by Mr Durick and Mr Irvine.[18]
  1. [29]
    On 5 May 2016 OCAA filed and served a supplementary individual report of Professor Werner that, in addition to multiple references to the IESC, included a table prepared with Dr Currell that analyses the then current status of NAC’s responses to the IESC 2014 Advice and IESC 2015 Advice.[19]
  1. [30]
    On 6 May 2016 OCAA filed and served a supplementary individual report of Dr Currell that, in addition to the table prepared with Professor Werner, identified that “A number of other deficiencies in the hydrogeological conceptualisation that were raised in my individual report, the Joint Expert Report (JER) and the IESC’s advice in 2014 and 2015 remain unresolved”.[20]
  1. [31]
    In May and June 2016 further expert reports on groundwater were also filed NAC[21] and OCAA,[22] including a supplementary joint report.[23]
  1. [32]
    Experts were cross examined at length on the consistency, or otherwise, of their opinions with the IESC 2014 Advice and IESC 2015 Advice.
  1. [33]
    For example Mr Holt QC took Mr Irvine, called by NAC, to the text of the IESC 2015 Advice attached to the expert report of Dr Currell in the following exchange:[24]

MR HOLT:  Evidence characterisation and validation of the role of faulting with regards to the lateral extent and magnitude of impacts to groundwater resources is needed?

MR IRVINE:  Yes.

MR HOLT:  Right. And that’s consistent with your view that the way in which you – where you place and how you conceptualise faulting can have a major impact on drawdown?

MR IRVINE:  I would agree with that, yes.

  1. [34]
    Similarly, Mr Holt discussed the concerns of the IESC 2014 Advice and IESC 2015 Advice with Mr Durick, such as in the following exchange:[25]

MR HOLT:  Yeah. Now – thank you. So, now, here we know that the – and I won’t take you to the details. I’ve done that with Mr Irvine and I know you’re familiar with the IESC reports. The IESC in 2014 raised – not just raised, but were critical of the absence of groundwater users – other groundwater users?

MR DURICK:  Yep.

MR HOLT:  Again in 2015 they remained critical of other groundwater users – yes?

MR DURICK:  Yeah.

MR HOLT:  In terms of the IESC reports, that’s part of why they expressed low confidence in the predictions that the models were said to be given?

MR DURICK:  Yes.

MR HOLT:  Yeah. And nothing has since been added in to the model in terms of what’s before this court, in terms of other groundwater use?

MR DURICK:  That’s right.

  1. [35]
    The IESC and its opinion, consistent or otherwise with the views of the expert witnesses, featured heavily in the hearing with the term IESC appearing approximately 182 times in the hearing of evidence.[26]
  1. [36]
    A number of the concerns of the IESC expressed in the IESC 2014 Advice and IESC 2015 Advice remained unresolved, consistent with the opinions of OCAA’s experts and reflected in OCAA’s closing submissions on 13 September 2016.[27]
  1. [37]
    NAC’s submissions also referred extensively to the IESC advices.[28]
  1. [38]
    On 15 December 2016 NAC emailed the Court seeking to tender the IESC 2016 Advice annexed to NAC’s reply submissions on the changes to the Queensland law with respect to water.
  1. [39]
    On 19 December 2016 NAC made the Application currently under consideration.

Legal Principles

Equity, Good Conscience and Natural Justice

  1. [40]
    Section 7 of the Land Court Act 2000 (Qld) (LCA) provides as follows:

In the exercise of its jurisdiction, the Land Court—

  1. (a)
    is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
  1. (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.
  1. [41]
    In Queensland Conservation Council Inc v Xstrata Coal Queensland P/L & Ors [2007] QCA 338 (QCC v Xstrata) the Queensland Court of Appeal considered the operation of similar provisions in respect of the predecessor of the Queensland Land Court, the Queensland Land and Resources Tribunal, s 49 of the Land and Resources Tribunal Act 1999 which stated as follows:

49  Conduct of proceeding

  1. (1)
    When conducting a proceeding, the tribunal must—
  1. (a)
    observe natural justice; and
  1. (b)
    act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues before it.
  1. (2)
    For the proceeding, the tribunal—
  1. (a)
    is not bound by the rules of evidence; and
  1. (b)
    may inform itself of anything in the way it considers appropriate; and
  1. (c)
    may decide the procedures to be followed for the proceeding.
  1. (3)
    However, the tribunal must comply with this division and the rules.
  1. (4)
    Directions about the way a proceeding is to be conducted may be given at any time ...
  1. [42]
    The Court of Appeal observed:[29]

“Although designated a tribunal, the Land and Resources Tribunal had very considerable judicial power. Whilst the rules of evidence need not apply, the present hearing appears to have been conducted according to those rules. All parties were legally represented, Xstrata and QCC by both senior and junior counsel. The Tribunal gave directions as to the conduct of the hearing, including that all evidence in chief was to be in affidavit form and as to the filing of expert reports and conferences with expert witnesses. The witnesses called at the hearing gave their evidence in chief, were cross-examined and re-examined. The Tribunal was entitled to inform itself of anything it considered appropriate. But s 49(1) Land and Resources Tribunal Act in its terms specifically required the Tribunal to observe natural justice.”

  1. [43]
    In the Tribunal proceedings, the Tribunal appeared to have been significantly influenced by two scientific papers it had independently identified after evidence had closed which contradicted an issue that was not in dispute between the parties at the hearing.
  1. [44]
    The objector’s expert witnesses were not cross-examined about the new papers nor given an opportunity to respond.
  1. [45]
    The Tribunal had written to the parties identifying the documents, but the Court of Appeal held:[30]

“Merely informing the parties that the Tribunal had become aware of documents which may be relevant to its decision did not satisfy the Tribunal's obligation to afford the parties procedural fairness by giving them a real opportunity to present information or argument on a matter not already obvious but in fact regarded as important by the decision-maker: see Yorke v General Medical Assessment, where Jerrard JA (McMurdo P and Davies JA agreeing) relied on the following observations of Gibbs CJ in Public Service Board of New South Wales v Osmond:

‘…a person or body which is considering making a decision which will adversely affect another should generally give notice to that other of the reasons why the proposed action is intended to be taken so that the person affected will have a fair opportunity to answer the case against him.’”

See also Brennan J's observations in Kioa v West and Commissioner for ACT Revenue v Alphaone Pty Ltd. QCC's further submissions of 14 February responding to the Tribunal's letter effectively highlighted this danger to the Tribunal. Unfortunately, the Tribunal did not respond appropriately to those submissions by, for example, listing the matter for further hearing so that the Tribunal's concerns arising out of the critique could be explained to the parties to allow them to respond and to call further evidence and make further submissions if they wished. (emphasis added)

  1. [46]
    The circumstances of the Tribunal in QCC v Xstrata is analogous to the course proposed by NAC in these proceedings, in that it proposes to allow into evidence a document that purports to contradict the conclusions of expert witnesses in these proceedings without giving the objectors any opportunity to respond by leading further evidence of those experts.
  1. [47]
    The overarching requirement in s 7 of the LCA for the Land Court does not empower the Land Court to dispense justice other than in accordance with basic common law principles of natural justice and procedural fairness.[31]
  1. [48]
    To follow the course proposed by NAC, denying the objectors the opportunity to call further evidence and make further submissions, would be to deny natural justice to the objectors in these proceedings and fall into error of the kind identified in QCC v Xstrata.

Interests of Justice

  1. [49]
    In addition to always observing natural justice, the guiding principle in deciding whether to give leave to re-open evidence is whether or not the interests of justice are served by allowing or refusing leave.
  1. [50]
    In the case of Citigold Corporation Ltd v Chief Executive, Department of Environment & Heritage Protection (No 3) [2016] QLC 21 (Citigold) this Court identified three scenarios in which applications for leave may occur. The present circumstances related to the third scenario, where the hearing has concluded but judgment is pending. I stated:

[11]  The considerations relevant to determining whether to permit the reopening of a case where the hearing has concluded but judgment is pending, cited with approval by Appelgarth J in EB v CT (No. 2) , are dealt with in the case of Reid v Brett as follows: The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows: (a) the further evidence is so material that the interests of justice require its admission; (b) the further evidence, if accepted, would most probably affect the result of the case; (c) the further evidence could not by reasonable diligence have been discovered earlier; and (d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.

  1. [51]
    In Citigold, the change to a guideline to the calculation of a financial assurance was considered sufficient to warrant reopening the evidence considering the ‘fundamental change’ that guideline may bring to the ultimate decision in that matter. In that case, the appellant was given the opportunity to lead evidence with respect to the guideline and all witnesses were permitted to take it into account.[32]
  1. [52]
    In respect of the criteria set out Reid v Brett [2005] VSC 18 (Reid v Brett) at [41](a) NAC submits that it is in the interests of justice to reopen the evidence to admit the IESC 2016 Advice. As set out in detail below, it is highly prejudicial and contrary to natural justice to allow the IESC 2016 Advice to be admitted or afforded any weight without the objectors being afforded the opportunity to lead further evidence and make further submissions. Accordingly, it can only be in the interests of justice to re-open the case to receive evidence from all parties on the IESC 2016 Advice.
  1. [53]
    In respect of the Reid v Brett criteria (b), if the IESC 2016 Advice is received into evidence and given no weight in light of the lack of witness in support of the IESC 2016 Advice, in favour of extensive expert testimony which preceded it, then it could not dislodge the opinions of the experts already given and substantially affect the case. If the IESC 2016 Advice is accepted into evidence and given any weight (or weight equivalent to the earlier advices, as NAC contends)[33] then it could affect the outcome of the case by casting a shadow on earlier expert testimony that referenced the earlier advice. If the IESC 2016 Advice is given any weight then the further expert testimony on that advice could also affect the outcome and must also be admitted.
  1. [54]
    In respect of the Reid v Brett criteria (c), it is clearly correct that the IESC 2016 Advice could not have been discovered earlier by NAC.
  1. [55]
    In respect of the Reid v Brett criteria (d), I will consider that under the heading of prejudice below.

Prejudice to Objectors in Accepting IESC 2016 Advice Without Procedural Fairness

Lack of Supporting Documentation

  1. [56]
    The IESC 2016 Advice expressly draws on further documentation provided by NAC. Under the heading ‘Context’ it states:[34]

“This advice draws upon aspects of information on the New Acland Coal Mine Stage 3 project within the assessment documentation and documents provided to the IESC between 10 December 2015 and 8 December 2016, together with the expert deliberations of the IESC. The project documentation and information accessed by the IESC, including additional information provided by the proponent, are listed in the source documentation at the end of this advice.”

  1. [57]
    The IESC 2016 Advice is followed by a list of “Source documentation available to the IESC in the formulation of this advice”.[35]
  1. [58]
    The majority of these documents are not public, not in evidence in this objection hearing and are not available to the objectors or the experts.[36]
  1. [59]
    A complete list of the documents available to the IESC and not available to the objectors is as follows:[37]
  1. (a)
    BMT WBM, 2016a. Receiving Environment Monitoring Program for New Acland Mine. Report prepared for New Hope Group: R.B21788.002.00.New_Acland_REMP_Design_Document.docx. February 2016;
  1. (b)
    BMT WBW, 2016b. New Acland Mine – Receiving Environment Monitoring Program - Pre-Release Survey 2015. Report for New Hope Group: R.B21788.001.00.prereleaseREMP 2015.docx. February 2016;
  1. (c)
    SLR, 2016a. NAC03 Fault Hydrogeological Investigation Program, October 2016 Status Report. Report for New Hope Group: 620.11303-L02-v1.0.docx. 24 October 2016;
  1. (d)
    SLR, 2016b. NAC03 GMIMP [Groundwater Monitoring and Impact Management Plan], October 2016 Status Report. Report for New Hope Group: 620.11303-L03- v1.0.docx. 24 October 2016;
  1. (e)
    SLR, 2016c. NAC03 Landholder Make Good, October 2016 Status Report. Report for New Hope Group: 620.11303-L01-v2.0.docx. 24 October 2016; and
  1. (f)
    SLR, 2016d. New Acland Stage 3 Project Groundwater Model Update, Phase 1 Completion Report (Numerical Model Scoping Report). Report for New Hope Group: 620.11499-L01-v2.0docx. 24 October 2016.
  1. [60]
    It is notable that each of these documents is described as being a “Report for New Hope Group”.
  1. [61]
    OCAA sought the advice of the experts it has called on the IESC 2016 Advice. These experts sought access to the references to be thorough in assessing the IESC 2016 Advice.[38]
  1. [62]
    So that it may make an informed view on the IESC 2016 Advice, OCAA sought access to these documents through NAC’s solicitors on 21 December 2016 and 22 December 2016 but was refused.[39]
  1. [63]
    So that he may properly advise OCAA and prepare for any reopening of evidence, Dr Currell sought access to the IESC 2016 Advice documents from the corresponding experts in this objection hearing and, on 3 January 2017, was directed to contact the solicitors for NAC.
  1. [64]
    On 22 December 2016 OCAA made a request under the Freedom of Information Act 2001 (Cth) to the IESC for the supporting documentation listed above. On 10 January 2017 OCAA was advised that the request would require ‘consultation with a third party’ and the decision period was extended to 20 February 2017.
  1. [65]
    On 3 January 2017 Dr Currell requested access to the relevant documents from the IESC and was advised that they were provided by the Applicant to the Department on a ‘commercial-in-confidence’ basis and they were unable to be released directly.
  1. [66]
    Unaware of these steps, at the hearing on 12 January 2017, when Dr Standley requested the reports, I stated that he should direct that request to NAC. Dr Standley’s submissions indicate that he has not been provided with the reports.
  1. [67]
    Consequently, the objectors have exhausted avenues open to them in the short term to access the documents upon which the IESC 2016 Advice is based.
  1. [68]
    The objectors are not in a position to properly respond to the evidence sought to be tendered in the IESC 2016 Advice without access to the supporting documentation.
  1. [69]
    I note the submissions of OCCA:[40]

If the IESC 2016 Advice is to be admitted into evidence, it must only be on the basis that all of the supporting documentation is made available to OCAA and the experts it has called so that OCAA may call further expert evidence and make further submissions on that evidence. To do otherwise would result in gross prejudice to OCAA and a breach of natural justice.

  1. [70]
    In my view, it is worth repeating some examples given by OCAA in their submissions.

Example 1 – Calibration issue unable to be resolved without supporting documentation

  1. [71]
    The IESC 2015 Advice stated:[41]

“Application of appropriate methods and interpretation of model outputs: key conclusions

Calibration hydrographs indicate the groundwater model has bias which results in frequent over-prediction of groundwater head in the alluvium and Walloon Coal Measures, when compared to observed data in monitoring bores. Updated modelling also predicts water levels within final voids will exceed the existing groundwater level, contributing to continued low confidence in the model conceptualisation and predictions.” (emphasis added)

  1. [72]
    Dr Currell and Professor Werner identified this issue as “not addressed” in their joint opinion attached to the Supplementary Individual Expert Report of Professor Werner.[42]
  1. [73]
    The only mention of calibration in the IESC 2016 Advice is as follows:

“3. The matters below from the 10 December 2015 IESC advice have been addressed by the proponent, or will be addressed through management processes and data acquisition identified within the additional information provided by the proponent.

…

Improvement of the groundwater model’s calibration in alluvial bores is proposed to be undertaken through incorporation of surrounding groundwater user abstraction rates in updated groundwater model predictions. Further, the proponent proposes to consider adjusting the weighting values applied to groundwater user bores to improve groundwater model calibration in the alluvium (SLR, 2016d). This will enable the model predictions to better match modelled and observed water levels in the alluvium. The groundwater model update is stipulated under the Queensland Coordinator-General’s Imposed Condition 12 (DSDIP, 2014).” (emphasis added)

  1. [74]
    It appears that the IESC in the IESC 2016 Advice considers the calibration in alluvial bores to be addressed by further improvements proposed to be undertaken by NAC but it is not clear, without access to the supporting documentation, if the calibration issues with respect to the Walloon Coal Measures have been addressed.
  1. [75]
    It is likewise impossible for the experts called by OCAA to advise whether their views on the adequacy of the calibration, consistent with the IESC 2015 Advice, are altered without access to the supporting documentation.

Example 2: IESC 2014 Advice issue unable to be resolved without further documentation

  1. [76]
    Professor Werner and Dr Currell identified a number of issues identified in the IESC 2014 Advice that were not addressed in the IESC 2015 Advice.[43]
  1. [77]
    These issues included the following:

“Relevant data and information: key conclusions

The following data and information are needed for potential impacts arising from proposed project to be fully assessed:

A comparison between observed and modelled potentiometric heads, presented in a series of maps, to enable better assessment of the reliability of the groundwater flow model;”[44]

and

“Application of appropriate methodologies: key conclusions

Confidence in the predictive capacity of the numerical groundwater model is low due to the adopted boundary conditions, anisotropic hydraulic conductivity values and recharge rates, and the lack of sensitivity testing of the model to these parameters.”[45] (emphasis added)

  1. [78]
    The IESC 2016 Advice is prepared in response to the following three questions from the requesting agency:

“Question 1: Does the additional information reasonably address the technical/scientific matters raised in the Department’s request for additional information dated 20 October 2016, and the key issues identified in the IESC advice (December 2015), or does it provide a robust process to address the uncertainties relating to those matters?”[46]

“Question 2: Does the proponent’s revised groundwater modelling provide a reasonable prediction of the expected maximum range of groundwater drawdown for the proposed mine?”[47]

“Question 3: Are there any additional management measures that may be implemented to better address the above matters?”[48]

  1. [79]
    The department’s request is silent on issues that may be outstanding from the IESC 2014 Advice that were not addressed in the IESC 2015 Advice, or indeed issues other than “key issues” in the IESC 2015 Advice.
  1. [80]
    The Department’s “request for additional information dated 20 October 2016” is not publicly available.
  1. [81]
    Accordingly, without access to the supporting documentation, or a witness able to be cross-examined on the IESC 2016 Advice, it is not possible to determine the extent to which the issue with groundwater information identified by OCAA’s experts and reflected in their concerns raised in the IESC 2014 Advice have been addressed, if at all.
  1. [82]
    Other key issues that may be at issue in the IESC 2016 Advice include:
  1. (a)
    The evidence base for conceptualisation and modelling of the vertical connection between key aquifers, such as the Walloon Coal Measures/Tertiary Basalt, Marburg Sandstone/Walloon Coal Measures and Walloon Coal Measures/Quaternary Alluvium. This issue is potentially fundamental to the question of what the drawdown impacts from mining are going to be and how robust the model actually simulates these impacts;
  1. (b)
    The assignment of aquifer properties to the key units, such as hydraulic conductivity (vertical and horizontal) and storage coefficient for the Walloon Coal Measures, Tertiary Basalts, Marburg Sandstone and Quaternary Alluvium, and the field evidence supporting this;
  1. (c)
    The quality of the calibration data (such as pit inflows data, of which many questions were raised during the trial), and detailed information about groundwater recharge and discharge, which appear to have significant bearing on model uncertainty but may not have such a solid evidence base in the form of field data; and
  1. (d)
    The calibration method (e.g. reasons for rejecting some models and keeping others) and uncertainty analysis.
  1. [83]
    Access to the supporting documentation would be required to determine if these issues have been addressed.

Example 3: Faulting

  1. [84]
    With regard to the issue of faulting and the evidence base supporting conceptualisation of faults in the groundwater model, the IESC seem to have only recognised the significance of this issue with respect to a restricted number of faults in the IESC 2016 Advice. Quoting from the advice:

“Groundwater – role of faulting

a.  Evidence, characterisation and validation of the role of faulting within the project boundary have been provided. Geological mapping and drilling data provided by the proponent details the location, throw direction and strata offsets of four out of five faults within the proposed project area. The proponent’s preliminary monitoring results show evidence that one fault acts as, at a minimum, a partial barrier to groundwater flow (SLR, 2016a).” (emphasis added)

  1. [85]
    As is clear in evidence prepared by NAC’s groundwater experts and provided during the trial (e.g. the figure showing mapped and modelled faults)[49] and updated groundwater model report (AEIS Groundwater Addendum, soft page 78),[50] the model contains representations of at least 10 faults within the project area. These are all represented within the model either as complete barriers to groundwater flow, or in a manner that does not allow the modeller to control their hydraulic behaviour (leaving gaps between adjacent cells that are assigned ‘wall’ properties).[51]
  1. [86]
    Without access to the additional data and documentation provided to the IESC with respect to faulting, it may not be possible to determine whether the IESC has considered in full the evidence base for all of these faults, the properties assigned to them in the model, and the associated implications for predictions of drawdown.

Conclusion regarding lack of access to documentation

  1. [87]
    It is clear from the above examples that it is necessary for the objectors and the groundwater experts to have regard to the supporting documentation to properly understand and respond to the IESC 2016 Advice.
  1. [88]
    This documentation is available to NAC but is unavailable to the objectors and their experts despite every effort being made to obtain it.
  1. [89]
    The objectors would suffer prejudice if the IESC 2016 Advice is received into evidence without being given a reasonable opportunity to respond, fully apprised of the supporting facts, which NAC has in its possession but has been unwilling to disclose.

Evidence in These Proceedings on Groundwater is Predominantly from Experts

  1. [90]
    Groundwater evidence is of a highly specialised and technical nature.
  1. [91]
    This Court is assisted by expert witnesses in these matters who provide their considered opinions on the available evidence, including their views of assessments of third parties such as the IESC.
  1. [92]
    The relevance of the IESC advices are their consistency or otherwise with the opinions of the experts in these hearings, who have synthesized their opinions on the IESC advices, and other available evidence, to assist the Court and been made available for cross examination on them.
  1. [93]
    To allow in the IESC 2016 Advice without any opportunity for comments by the experts in these proceedings is meaningless to this Court as it is not in a position to draw any conclusions against the opinion of those experts without them or indeed others’ experts or witnesses, having the opportunity to comment.

Conclusions

  1. [94]
    In my view, it was folly of NAC to believe that it could have the IESC 2016 Advice admitted into evidence in the alternate manners in which it sought same to be admitted by its application. Clearly, being satisfied as I am that, on its face, the IESC 2016 Advice may, if all supporting evidence is consistent with that advice and not able to be countered by other evidence, result in a different conclusion being reached by this Court on the important areas considered by the IESC 2016 Advice than a consideration based solely on the evidence as it existed at the time of the close of the parties’ evidence, and submissions in October 2016, and having been satisfied of the four Reid v Brett factors, it is my opinion that the applicant should be granted leave to reopen the hearings. 
  1. [95]
    However, in terms of natural justice/prejudice, it is my view that such reopenings should be on a much more extensive basis than that proposed by NAC and, indeed, some of the objectors.
  1. [96]
    Despite NAC’s attempt to limit the reopening to the advice and those groundwater documents that it says are relevant to the advice, in my view all of the material relied upon by the IESC in its 2016 Advice, referred to in that advice, and provided to the IESC by NAC, should be made available at the earliest opportunity to all of the parties and to the Court. Once the objectors have had sufficient time to consider the contents of those reports, the objectors should have a proper opportunity to obtain advice and witness statements from such expert and lay witnesses as they consider necessary and appropriate, specifically not limited to the experts who have been called to date in these matters. In like terms NAC should have an equal opportunity to put on such further expert and other evidence as it considers necessary and appropriate for the reopening of these hearings, also not limited to its current experts and witnesses. The reopening though, will be limited to the issues flowing from the 2016 IESC Advice and the NAC reports upon which it relied, including the surface water reports.
  1. [97]
    It is inevitable that the reopening of these hearings will cause delay to this Court in providing its recommendations. That, however, is something which falls squarely at the feet of NAC. Indeed, given my comments that, taken on its face value, the IESC 2016 Advice has the potential to alter some of the recommendations that the Court may have made on the basis of the evidence provided at the hearing of this matter, it is completely clear and understandable why NAC brought the application that it did. What is not understandable is why NAC delayed, unreasonably in my view, to provide the objectors at the earliest possible opportunity with the reports referred to in the IESC 2016 Advice reports which it had provided to the IESC. If NAC is truly concerned about matters of urgency, as it has stated to this Court on numerous occasions, then it was incumbent upon it to put the objectors in the best position that it could to allow them to respond as quickly and as fully as they could at the earliest possible opportunity.
  1. [98]
    For completeness, and to avoid further unnecessary delay and argument between the parties, I consider it appropriate to make the orders sought by NAC relating to the media release by the Minister for Natural Resources and Mines of 12 October 2016 regarding coal workers’ pneumoconiosis, and the screenshot of the web page article “Reckless job destroying legislation passed” dated 10 November 2016, annexed to Dr Plant's submissions on water reform legislation.

Proposed Orders

  1. [99]
    The orders that the Court proposes to make in these matters are that the hearings be reopened; that the media release of the Minister for Natural Resources and Mines of 12 October 2016 regarding coal workers’ pneumoconiosis be admitted into evidence; that the web page article “Reckless job destroying legislation passed” be admitted into evidence that NAC provide to the objectors by no later than 4pm 3 February 2017 and file in the Court all reports provided by NAC to the IESC and referred to in the IESC 2016 Advice; and that all parties be permitted to call fresh evidence, including expert and lay evidence, from such expert and lay witnesses as each party considers appropriate in light of the IESC 2016 Advice and reports from NAC as referred to in that Advice.
  1. [100]
    I will hear from the parties as to the precise form of orders to be made for timetabling of the provision of further evidence and hearing of oral evidence.

Orders

  1. [101]
  1. The hearing of these matters is reopened to lead evidence with respect to the IESC 2016 Advice and documents referred to in that Advice.
  1. By 4:00pm on 3 February 2017, New Acland Coal Pty Ltd (NAC) must file in the Land Court and provide to all objectors copies of all reports provided by NAC to the IESC and referred to in the IESC 2016 Advice.
  1. All parties are permitted to call fresh evidence, including expert and lay evidence, from such expert and lay witnesses as each party considers appropriate in light of the IESC 2016 Advice and reports provided by NAC to the IESC as referred to in the IESC 2016 Advice.
  1. The media release of the Minister for Natural Resources and Mines dated 12 October 2016 regarding coal workers’ pneumoconiosis be admitted into evidence.
  1. Screenshot of the webpage article “Reckless job destroying legislation passed” dated 10 November 2016, annexed to Dr Plant’s submissions on water reform legislation be admitted into evidence.

PA SMITH

MEMBER OF THE LAND COURT

Footnotes

[1]  Due to the brevity of time to consider this application in circumstances where I am currently hearing evidence in a two week hearing, I have relied substantially on the submissions made by OCAA on 23 January 2017 which I have amended and adopted as appropriate to my own words.

[2]  For consistency the defined terms and acronyms set out in the glossary of OCCA’s closing submissions dated 13 September 2016 are used.

[3]  Denney Second Affidavit, Ex. BD6.

[4]  Affidavit of Sean Ryan, 23 January 2017, Ex. SPR1.

[5]  Annexure C to Ex. 435; Document ID: OCA.0070.

[6]  See, for example, paras 3.9 and 3.10 of the letter of engagement attached to the Individual Expert Report of Matthew Currell at p 31 and paras 3.9 and 3.10 of the letter of engagement attached to the Individual Expert Report of Adrian Werner at p 79.

[7]  OCAA Notice of Issues, para 2(b)(ii), p 4.

[8]  Annexure D to Ex. 435; Document ID: OCA.0070.

[9]  Joint Expert Report on Groundwater (NAC.0033, [405]). See, for example, para 2.37(a) p 14, para 3.14 p 28, para 3.37 pp 38, 48, 64, 77, 102, 106, 108, 129, 133, 142 and 154.

[10]  See, for example, para 2.5, footnote 3, p 3; para 2.16(a), footnote 4, p 8 and para 3.5(a), p 24.

[11]  See, for example, the references to IESC in the Individual Expert Report of Matthew Currell (OCA.0021, [435]) such as para 4, p 2, para 2.1, p 4, para 4.1, p 7; and the references to IESC in the Individual Expert Report of Adrian Werner (oca.0022, [436]).

[12]  See, for example, the Joint Statement of Evidence of Andrew Durick and Duncan Irvine dated 24 February 2016 (NAC.0046, [418]), p 39.

[13]  Ex. 495, TMP.0009.

[14]  Ex. 721, OCA.0037.

[15]  Ex. 721.

[16]  T 10-29, lines 16-21 (30 March 2016), (emphasis added).

[17]  NAC First Affidavit of Andrew Durick (NAC.0079) [815] para 6 p 2; paras 13 and 14 p 4; para 19 p 5.

[18]  NAC Second Affidavit of Andrew Durick (NAC.0080, [816]).

[19]  Adrian Werner Supplementary Individual Expert Report (OCA.0071, [833]) para 26, p 27 and Attachment C.

[20]  Matthew Currell Supplementary Individual Expert Report (OCA.0069, [824]) para 2 p 3.

[21]  Including the First Affidavit of Brian Barnett (NAC.0081), Statement of Evidence of Brian Barnett (NAC.0083, [826]) and Further Statement of Evidence of Brian Barnett (NAC.0157, [1113]).

[22]  Second Supplementary statement of evidence of Adrian Werner and Matthew Currell (OCA.0116, [1116]).

[23]  OCA.0070, [825].

[24]  T 9-23, line 43 to T 9-24, line 4; Matthew Currell SoE, soft page 63.

[25]  T 25-4, lines 1-12.

[26]  Affidavit of Mr Ryan, 23 January 2017, para 4.

[27]  OCAA Closing Submissions, where the IESC is mentioned 63 times, for example para 43, p 34, para 47(b), p 35, para 934(b), p 230, para 959, p 239, para 1039, p 260.

[28]  The term IESC is mentioned over 30 times in NAC’s Closing Submissions dated 26 August 2016 and over 30 times in NAC’s reply submissions dated 30 September 2016.

[29]  At para [43].

[30]  At para [46].

[31] CH4 Pty Ltd v The Minister for Natural Resources, Mines and Energy and Minister for Trade (2010) 31 QLCR 52 per Member Smith at [28] and see also the comments of Member Divett in Spender v Department of Natural Resources and Mines [2003] QLC 43 at [41]-[46] and the High Court of Australia in Kioa v West (1985) 159 CLR 550, per Mason J, at p 582.

[32] Citigold at [23].

[33]  Applicant’s Submissions dated 12 January 2017, paras 32 to 34.

[34]  IESC 2016 Advice, p 1.

[35]  IESC 2016 Advice, p 8.

[36]  Affidavit of Mr Ryan, 23 January 2017, paras 11-12.

[37]  Affidavit of Mr Ryan, 23 January 2017, para 12.

[38]  Affidavit of Mr Ryan, 23 January 2017, para 8.

[39]  Affidavit of Mr Ryan, 23 January 2017, paras 13-20.

[40]  OCAA submission, 23 January 2017, para [68].

[41]  Ex. 435, Appendix D to Currell SoE OCA.0021, p 62.

[42]  Ex. 833, Supplementary Individual Expert Report of Professor Werner, 5 May 2016, OCA.0071, sp 80.

[43]  Ex. 833, Supplementary Individual Expert Report of Professor Werner, 5 May 2016, OCA.0071, sp 50, items 2, 10, 13, 14, 20, 22, 34, 38, 43, 73, 77 and 79.

[44]  Ex. 833, Supplementary Individual Expert Report of Professor Werner, 5 May 2016, OCA.0071, sp 50, items 1 and 2.

[45]  Ex. 833, Supplementary Individual Expert Report of Professor Werner, 5 May 2016, OCA.0071, sp 52, item 8.

[46]  Affidavit of Mr Geritz, 19 December 2016, p 7, attaching IESC 2016 Advice p 2.

[47]  Affidavit of Mr Geritz, 19 December 2016, p 10, attaching IESC 2016 Advice p 5.

[48]  Affidavit of Mr Geritz, 19 December 2016, p 11, attaching IESC 2016 Advice p 6.

[49]  2016 IESC Response, Figure 3.0, soft page 12; Reporduced as Figure 8-9 on p 264 of OCAA’s Closing Submissions.

[50]  Reproduced as Figure 8-8 on p 263 of OCAA’s Closing Submissions.

[51]  See [1075]-[1076] of OCAA’s Closing Submissions.

Close

Editorial Notes

  • Published Case Name:

    New Acland Coal Pty Ltd v Ashman & Ors (No. 3)

  • Shortened Case Name:

    New Acland Coal Pty Ltd v Ashman (No. 3)

  • MNC:

    [2017] QLC 1

  • Court:

    QLC

  • Judge(s):

    Member Smith

  • Date:

    02 Feb 2017

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
CH4 Pty Ltd v The Minister for Natural Resources, Mines and Energy and Minister for Trade (2010) 31 QLCR 52
1 citation
Jump To
Cite 1 - (2010) 31 QLCR 52
Citigold Corporation Limited v Chief Executive, Department of Environment & Heritage Protection (No. 3) [2016] QLC 21
2 citations
Jump To
Cite 1 - [2016] QLC 21
Cite 2 - [2016] QLC 21
Kioa v West (1985) 159 C.L.R 550
1 citation
Jump To
Cite 1 - (1985) 159 C.L.R 550
Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd [2007] QCA 338
2 citations
Jump To
Cite 1 - [2007] QCA 338
Cite 2 - [2007] QCA 338
Reid v Brett (2005) VSC 18
2 citations
Jump To
Cite 1 - (2005) VSC 18
Cite 2 - (2005) VSC 18
Spender v Department of Natural Resources and Mines [2003] QLC 43
1 citation
Jump To
Cite 1 - [2003] QLC 43

Cases Citing

Case NameFull CitationFrequency
Cement Australia (Exploration) Pty Ltd v East End Mine Action Group Inc (No 3) [2021] QLC 154 citations
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd (No 12) [2018] QLC 151 citation
New Acland Coal Pty Ltd v Ashman (No. 4) [2017] QLC 244 citations
New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc. (No 3) [2022] QLC 57 citations
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd(2019) 2 QR 271; [2019] QCA 1841 citation
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