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- Unreported Judgment
New Acland Coal Pty Ltd v Ashman (No 5) QLC 58
LAND COURT OF QUEENSLAND
New Acland Coal Pty Ltd v Ashman & Ors (No. 5)  QLC 58
New Acland Coal Pty Ltd
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 Wieck, Simon Wieck
(MRA level 1 objectors)
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,
(MRA level 2 objectors)
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, Frances Scarano, Jane Scholefield,
Max Scholefield, Loretta Smith, Desley Spies, Kevin
Spies, David Vonhoff, Cheryl Vonhoff, Fay Wieck, Grant
Wieck, Simon Wieck
(EPA level 1 objectors)
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)
(EPA s 186(d) party)
Chief Executive, Department of Environment and
(EPA statutory party)
Applications for costs
19 October 2017 (ex tempore)
19 October 2017
COURTS – PRACTICE AND PROCEDURE – where application for judicial review made of Land Court’s recommendations – where allegations of apprehended bias made against Land Court Member – whether Land Court Member should hear costs and related applications – where implication of untruthfulness made against Land Court Member by use of ‘scare quote’ – where Land Court Member on his own initiative raised concerns about his continuing to hear applications
P Ambrose QC (instructed by Clayton Utz) for the applicant
CJ McGrath of Counsel (instructed by the Environmental Defenders Office) for the Oakey Coal Action Alliance Inc
PD Snedden (Litigation Unit, Department of Environment and Heritage Protection) for the statutory party
T Plant self-representing and representing S Ward, S Plant and M Plant.
- As a consequence of orders made on 31 May 2017, various applications were made regarding orders as to costs. Thereafter, an application was filed by OCAA on 11 October 2017. The parties exchanged submissions and the application of 11 October 2017 came on for hearing on 19 October 2017. Before hearing the arguments on the application, Member Smith, on his own initiative, raised the issue of apprehension of bias and whether, in the circumstances, ti was appropriate for him to hear the applications.
- Before the making of this application, there was an issue which I was going to raise, either directly with the parties myself in writing or by calling you back before the court. As you know, I have been out of action for a considerable period of time, and I am only very recently back at the court.
- The matter I wish to raise is dealt with in part in the closing submissions I read yesterday from your client, Mr Ambrose, dealing with the question of bias and whether or not there has been a waiver to that issue being raised and the contentions that have been put in that regard. Now, it is not so much the issue of the apprehended bias that I want to raise now, but it is certainly a related matter.
- I should also indicate that I am being as careful as I can be with what I say and what I don’t say, because the NAC substantive matter is, of course, under stat review before the Supreme Court, and I don’t want to be seen in any way, actually or impliedly, to be saying or doing anything that would interfere with the proper progression of that matter.
- As the parties would be aware, I have, save for one aspect, instructed my solicitor in the judicial review to take the approach taken by almost all judicial officers in Australian history, which is simply, in those sort of matters, to take no part in the contest and let the parties fight it out between themselves and abide the orders of the court.
- The one part, though, which I did instruct something to be said on and which I understand was included in my material related to paragraph 14(ix) of the application for statutory order of review by NAC. Paragraph 14(ix) says:
“The respondent put documents to at least one lay witness of the applicant (Mr Denney) that he indicated he had “randomly” selected from the eTrial website, including documents that required expert knowledge, and asked the witness to interpret the documents.”
- I think the wording in my response under Instructions was something of the nature of strenuously denied the allegation in that subparagraph.
- My concern relates to this. It is the use of the word “randomly” in inverted commas, and, in my understanding, the use of inverted commas around a word such as “randomly”, in the manner in which it is done, falls squarely within the definition of scare quote, which is an opponent saying something in such a way as to put that statement into ridicule or disregard.
- I will not go to the exact meaning of the word, but, in effect, it’s saying: he says it was done randomly, but it wasn’t really done randomly. In applying normal English usage to the use of those words, it is, at the very least, an indirect attack on my truthfulness in a statement that I have made as to my coming across the document referred to in a random way.
- I will go no further as regards what occurred in the way I came across the document, except to say that I strenuously deny any allegation that my finding of the document was in any way other than randomly.
- I have, of course, read and given instructions on the balance of NAC’s application for judicial review. I think I’m a big boy. I have certainly been around every level of jurisdiction in Australia, including a substantive practice in the High Court in my earlier career, and have drafted many documents myself and served many documents myself which are of the same nature as the great bulk of the application for statutory review. I see that as par for the course and part of the litigious process we go through and have not the slightest concern in the world about anything that is said.
- That is just part of our legal process, which those of us experienced in the law completely understand. That however does not apply to the use of the word “randomly” by way of a scare quote. Perhaps I am overly sensitive when I cut everything away, but seeing that as at least an indirect attack on my honesty is a completely different thing to everything else that is put, which is a question of getting things wrong or not understanding things or going off the track. That’s fine. Not a concern in the world.
- I have not been able to find precedents where a judge’s honesty has been questioned in proceedings, but my concern is this. I could use some Australian colloquialisms to say how it made me feel when I read that, but to say that I was deeply hurt, offended and extremely unhappy would be putting it too lightly.
- I believe, in a judicial sense, that I could probably – but I cannot put it any higher than that – put that to one side for the fair disposition of the matters currently before me, but I cannot say how I would respond subconsciously. Of course, the test is not how I feel or what I feel. It’s how the reasonable observer would behave, if there was at least the apprehension of a bias in relation to this point.
- I am deeply troubled that there may he, with respect to this particular usage of this one word by NAC, the creation of circumstances which mean that I can no longer deal with this matter. The alternative, of course, is to leave the matter until after the Supreme Court deals with it, but, of course, that may be a very long time, because it may go from Supreme Court to Court of Appeal to High Court, as the Hancock matter did. Who can say?
- It is normal in circumstances such as this to hear from the parties. So, in those circumstances, I will hear what your views are.
- The Court then heard submissions from the parties. All parties present, save for the statutory party which made no submission, expressed the view that, in light of the statement made by the Court, the safest position to adopt was that the application should be adjourned until after the conclusion of the judicial review proceedings. The Court then continued.
- I know I cut Dr Plant off in what she was saying. That was not meaning to be rude, Dr Plant, but I, as I hope the parties understand, have chosen my words as carefully as I can today wanting to bring the issue I was concerned with to the notice of the parties without going into anything further than what is on the public record as to my views in regard to that and in looking at it from a purely legal position as to what flows from that.
- I trust the parties understand the struggle I have had even dealing with how to raise this matter, and thank you for your understanding in bringing it up in the way that I have done today.
- It is also why I was content to have all parties appear today because, certainly, the statutory party is off to one side on costs. Other parties involved in the matter do have submissions that they have made on costs even if not on this actual application but on the broader applications, and of course, I have to deal with those as well. So the orders that I will have to make will not only be that this application be adjourned but that the determination of all costs applications also be adjourned.
- The orders that I make are that the application of 11 October 2017 by OCAA together with the substantive applications as to costs be adjourned to a date to be fixed to be brought on by seven days’ notice by any party, and that the costs of today be reserved.
- The application filed 11 October 2017 by OCAA together with the substantive applications as to costs are adjourned to a date to be fixed to be brought on by seven days’ notice by any party.
- Costs reserved.
MEMBER OF THE LAND COURT
- Published Case Name:
New Acland Coal Pty Ltd 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 Wieck, Simon Wieck; 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; Frank Ashman, Lynn
- Shortened Case Name:
New Acland Coal Pty Ltd v Ashman (No 5)
 QLC 58
19 Oct 2017