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New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc.[2021] QLC 29

New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc.[2021] QLC 29

LAND COURT OF QUEENSLAND

CITATION:

New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc. & Ors [2021] QLC 29

PARTIES:

New Acland Coal Pty Ltd

(applicant)

v

Oakey Coal Action Alliance Inc.

(active objector)

and

Glenn Norman Beutel and Pamela Aileen Harrison

(non-active objectors)

and

Chief Executive, Department of Environment and Science

(statutory party)

FILE NOs:

MRA026-21

MRA027-21

EPA028-21

DIVISION

General division

PROCEEDING:

General application

DELIVERED ON:

Orders made on 20 August 2021

Reasons published on 27 August 2021

DELIVERED AT:

Brisbane

HEARD ON:

19 August 2021

Submissions closed 20 August 2021

HEARD AT:

Brisbane

PRESIDENT:

FY Kingham

ORDERS:

  1. Member Stilgoe is allocated to conduct and case manage the mining objection hearing, and to hear any further interlocutory applications.
  2. With respect to the general application filed on 12 August 2021:
    1. the application is dismissed; and
    2. the CMEE Convenor is directed to assist the parties to reach agreement on a timetable for the Applicant to identify and the Respondent Oakey Coal Action Alliance (OCAA) to respond to objections to any passages in the affidavits of Ms Harrison and Mr Beutel sworn on 4 August 2021. If any party requires a ruling on disputed objections before the hearing, they must request a date for hearing before Member Stilgoe.
  3. With respect to the general application filed on 18 August 2021, the parties must brief the experts in the following way:
    1. The brief will include objections made by non-active objectors and the instructions will confirm that the experts may have regard to them but are not asked to provide an opinion about them.
    2. Subject to resolving objections in accordance with order 2b., the brief will include the affidavits referred to in that order.
    3. The brief will include the aerial photograph that now appears at [3.33] of OCAA’s proposed brief of instructions and further aerial photographs at reasonable intervals to illustrate the progression of mining since the commencement of stage 2 of the mine in 2006.
    4. The brief will include a clear statement agreed by the active parties which identifies the area of and activities proposed for ML50232 that the experts must consider in preparing their report.
    5. The brief will not include the instruction proposed in the second sentence of [13.2] of OCAA’s proposed brief of instructions.
    6. The question 2 in OCAA’s proposed list of issues for the noise experts will be amended so that 2a. reads:

“2a. please confine your answer to considering whether the monitoring conditions are adequate to enable the administering authority to assess compliance and people at noise sensitive places around the mine to understand performance in relation to noise having regard to, without limitation…”

  1. Subject to the Applicant’s reservation of its right to argue at or before the hearing that the following questions fall outside the scope of OCAA’s objections and that the Court cannot receive evidence in relation to them the brief will include in the list of issues the following questions:
    1. For both air and noise experts:

“3. Whether the conditions in the Applicant’s Draft EA and/or the Statutory Party’s draft EA:

  1. are appropriate in respect of the process for auditing complaints, compliance or data records; and
  2. should specify mitigation steps in the event of non-compliance and if so, whether they do so appropriately.”
    1. For air experts:

“5. Will compliance with the air quality conditions in the Applicant’s Draft EA and/or Statutory Party’s Draft EA, and any Additional and Amended Conditions require mitigation measures to be undertaken including any operational or management constraints on the Mine?

If so, to the extent that you are able within your field of expertise, please describe the range of possible mitigation measures required to achieve compliance.”

  1. For noise experts:

“5. Will compliance with the air quality conditions in the Applicant’s Draft EA and/or Statutory Party’s Draft EA, and any Additional and Amended Conditions require mitigation measures to be undertaken including any operational or management constraints on the Mine?

If so, to the extent that you are able within your field of expertise, please describe the range of possible mitigation measures required to achieve compliance.

In answering this question, if a weather forecasting and adaptive management system is required to achieve compliance, to the extent that it falls within your area of expertise, please comment on whether you consider that system to be effective.”

  1. The brief will include in the list of issues the questions 6 and 7 as formulated by OCAA for each of the air and the noise experts.
  2. The brief will include the documents described at paragraph 4(f)-(i) of the Issues not agreed by the Applicant and OCAA for the brief dated 16 August 2021.
  3. To the extent that there remains any dispute about documents requested by OCAA and not produced by the Applicant, including the documents referred to in paragraph 4(g) of the issues not agreed, that will be determined by the procedures that apply to subpoenas.
  1. The parties must not delay briefing the experts because of outstanding disputes regarding the affidavits or further documents. Those further documents and instructions can be provided to the experts when those disputes are resolved.
  1. The costs of both applications are reserved, unless any party makes application for a different order within 7 days of the publication of the reasons for these orders, in which case directions will be issued for the costs application to be determined on the papers.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS – where there was an agreement between some parties about their status in the hearing – where the applicant sought to preclude lay affidavits made by non-active objectors from forming part of the evidence at the objections hearing – where the applicant contended that reliance on the lay affidavits was inconsistent with the Court’s practice direction for mining objection hearings – where the Court held that the active party was able to lead the lay affidavits as evidence in compliance with the Court’s practice directions 

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – where the non-active parties (Mr GN Beutel and Ms PA Harrison) agreed not to be active parties in return for the Applicant not seeking a costs order against them in the hearing – where the Court must interpret the agreement at its plain meaning – where the active party (OCAA) was not a party to the agreement – where the Court held that the applicant could not obtain specific performance against OCAA – where the Court must afford procedural fairness to the parties and avoid practical injustice – where the Court held that to prevent OCAA from leading evidence from the lay witnesses would be a practical injustice

ADMINISTRATIVE LAW – PROCEDURAL FAIRNESS – where the Member case managing the matter was not conducting the mining objection hearing – where the Court considered there was a risk of compromising the statutory validity of the hearing or the statutory authority of the Court’s recommendation were it to resolve questions about the scope of OCAA’s objections – where the Court did not make any determinations about the scope of OCAA’s objections to maintain procedural fairness

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – where the applicant sought orders to resolve a number of disputes between the parties about the information, questions, and instructions for the expert witnesses – where the Court made orders to achieve its objective to efficaciously use expert evidence

Land Court Act 2000 s 14, s 22

Mineral Resources Act 1989 s 252A, s 265(2), s 265(9), s 268(2), s 268(3), s 269(1)

Environmental Protection Act 1994 s 9, s 15, s 152, s 182(2), s 185, s 186, s 188, s 190(1)

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24, cited

Deimel v Phelps [2020] QLC 2, cited

Fulham Football Club v Cabra Estates [1992] BCC 863 at 874, cited

Minister for Immigration & Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40, cited

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6, cited

Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2, cited

Stewart & Others v Moreton Bay Regional Council & Another [2015] QPEC 26, cited

Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45, cited

APPEARANCES:

DG Clothier QC, with S Webster (instructed by Clayton Utz) for the applicant

DJ Campbell QC, with J Forsyth SC, CJ McGrath, B Hall, and G Kiss (instructed by the Environmental Defenders Office) for the respondent

A Hellewell (instructed by the Litigation Unit, Department of Environment and Science) for the statutory party

  1. [1]
    On 20 August 2021, I made orders on two applications by New Acland Coal Pty Ltd, one dealing with lay affidavits filed by Oakey Coal Action Alliance Inc, the other dealing with disputes between the parties about briefing expert witnesses. I also made a direction about the further case management of this matter and declined to deal with some aspects of NAC’s applications, because of my concern not to compromise the statutory validity of the hearing and the statutory authority of the recommendation ultimately made. I will give my reasons for that direction before turning to each application.

Statutory validity and authority of the mining objection hearing

  1. [2]
    When this matter was remitted by the High Court to this Court for rehearing,[1] I indicated that I would not conduct the rehearing but would oversee its case management until it was ready for hearing. Pre-trial preparation is not complete. The matter is not ready for hearing. Nevertheless, I have now allocated the hearing to Member Stilgoe and directed that she case manage the matter and hear any further interlocutory applications. My purpose in doing so is to avoid the possibility that case management decisions could compromise the statutory validity of the hearing or the statutory authority of the Court’s recommendation.
  1. [3]
    Because I have taken a conservative approach, perhaps excessively so, it is appropriate to briefly explain my reasoning.
  1. [4]
    Although this was not raised by the parties on appeal, the plurality in the High court in OCAA v NAC questioned whether a hearing in which the presiding member was bound by the findings and conclusions made earlier by another member was in accordance with the requirement under the Land Court Act 2000 that the Court be constituted by a member “sitting alone”.[2] The procedure considered by the High Court was the limited rehearing I conducted in 2018 pursuant to orders made by Justice Bowskill on judicial review from a recommendation made by Member Smith on NAC’s applications. The effect of her Honour’s orders was that, in undertaking the rehearing and making my recommendation, I was bound to accept and act upon substantive findings made by Mr Smith on evidence led at the original hearing.
  1. [5]
    I have not been asked to make findings or draw conclusions on the evidence on either application before me. However, some aspects of NAC’s arguments raise the scope of OCAA’s objection. Given the restrictions of the statutory regime for mining objection hearings, a question of that nature has fundamental importance to the conduct of the hearing and to whether the Court affords procedural fairness to an objector.
  1. [6]
    In conducting a mining objection hearing, the Court is performing an administrative function in accordance with the statutory regime provided for by the Mineral Resources Act 1989 for an application for a mining lease and the Environmental Protection Act 1994 for a draft environmental authority. Further, the Court must perform its jurisdiction in accordance with the LCA.
  1. [7]
    Observing procedural fairness in conducting the hearing and in making the recommendation is central to the implied conditions of the statutory process under both of the Acts that confer this jurisdiction on the Court.[3] This requires an objector to be given a fair opportunity to be heard on the grounds of their objection.[4] A decision about the scope of an objection is critical under the MRA because:

“The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application.”[5]

  1. [8]
    The statutory limitation on the evidence the Court can receive elevates the importance of decisions about the scope of an objection, given the Court’s requirement to give an objector a fair opportunity to be heard on their grounds of objection.
  1. [9]
    In those circumstances, I consider it best, if cautious, for decisions about the scope of a ground of objection, and the evidence that may be heard in support of it, to be made by the member who conducts the hearing. That avoids the possibility that a disappointed party might argue that the hearing lacked validity, and the recommendation authority, because the hearing member was bound by the decision made by another member on those important matters.
  1. [10]
    Where that is a possibility, I have either acted on a course agreed by the parties or reserved for Member Stilgoe a decision on any matters not finally resolved by my orders or subsequently agreed between the parties.

OCAA’s lay affidavits

  1. [11]
    NAC sought an order that three affidavits made by non-active objectors are not to form part of the evidence at the objections hearing. After it filed the application, one of the lay affidavits was withdrawn. NAC argued the Court should not receive the affidavits of the other two deponents, Ms Harrison and Mr Beutel, for two reasons. First, because it was inconsistent with the Court’s practice direction for mining objection hearings (PD 4 of 2018) because they elected not to be an active party in the rehearing. Second, because of the terms of an agreement between NAC and those deponents (the no costs agreement).
  1. [12]
    OCAA argued the practice direction did not preclude it filing the disputed affidavits. Further, the no costs agreement could not be specifically enforced against OCAA, which is not a party to the agreement. Nor could that agreement bind the Court.

The witnesses’ status as a “non-active” party

  1. [13]
    To appreciate the arguments on this issue, it is necessary to understand the process by which a person becomes involved in a mining objection hearing.
  1. [14]
    For a mining lease, an applicant must give notice of their application by, among other things, publishing prescribed information in an approved newspaper generally circulating in the area of the subject land.[6] Notice of the application for an environmental authority must be given simultaneously or together with the notice about the mining lease.[7] The prescribed information includes the period within which and the way in which a person may object to the applications. If the Department of Environment and Science considers an environmental authority should be granted, it must give notice of a draft environmental authority to any person who made a submission to it on the application and advise they may ask for their submission to be an objection to the application.[8]
  1. [15]
    After the objection period ends for both applications, the Department of Resources must refer the applications, if objected to, and any objections to them to the Land Court for hearing.[9] Where there are objections to both applications, the Court may, and usually does, order the hearings about both happen at the same time.[10]
  1. [16]
    This referral process commences what is known as a mining objection hearing. The Court’s function is administrative because it forms part of (rather than reviews) the decision-making process under those Acts. The Court makes recommendations on the applications to the ultimate decision makers, who must take the Court’s recommendations into account in making their own decisions.[11]
  1. [17]
    The MRA does not define the parties to the hearing about the mining lease. The Court may “hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters”.[12] In practice, the parties to a hearing about a mining lease are the applicant and the objectors.
  1. [18]
    The EPA does define the parties for the hearing about the draft environmental authority. They are the administering authority for the EPA, the applicant, any objector, and anyone else decided by the Court.[13]
  1. [19]
    Upon referral, the Court opens a file which identifies the Applicant, describes the objectors as the Respondents, and, if it involves an application for an environmental authority, the Department administering the EPA, as the statutory party.
  1. [20]
    Neither the MRA nor the EPA require the public notice to advise that, by making an objection, a person will be a party to a hearing in the Land Court. Some objectors are taken by surprise when they receive a notice from the Court directing them to attend a directions hearing. The Court recognises that not all objectors want to take an active part in the hearing. Some want to do not more than rest on their objection. This is acknowledged in Practice Direction 4 of 2018 – Procedure for Mining Objections Hearings, which “explains the procedure the Court will use to conduct a Mining Objection Hearing (MOH) in a way that is accessible, fair, just, economical, and expeditious.”[14] The procedure includes a process to clarify who will take an active role in the hearing.
  1. [21]
    The PD describes the responsibilities of an active party as follows:

“An active party must participate fully at all stages of a MOH and must comply with the Court’s directions about procedure.”[15]

  1. [22]
    For referrals made after that PD commenced, the Court assumes an objector does not wish to be a party to the hearing unless they elect to be an active party.
  1. [23]
    The PD defines active parties as the Applicant, the Statutory Party, and any objector who elects to be an active party.[16]
  1. [24]
    To elect to be an active party, an objector must file a Notice of Election within the period specified.[17] After the election period, an objector who has not filed a Notice of Election may apply to be an active party. The Court may approve the application only if it is satisfied it is in the interests of justice to do so, having heard from the active parties and after considering prescribed matters.[18]
  1. [25]
    There is a disconnect between the PD process and the procedure for this rehearing, which commenced with a referral that predated the PD. The parties to the original hearing before Mr Smith and the limited rehearing that I conducted in 2018, were identified according to a practice direction since repealed.[19] For that stage of the matter, Ms Harrison and Mr Beutel both chose to be what was then called a level 2 objector. A level 2 objector was required to attend all court hearings and had the right to call evidence and cross-examine witnesses as well as make submissions. In all material respects, a level 2 objector is the equivalent to an active party under the new PD.
  1. [26]
    Given the lengthy history of the matter, it was appropriate to allow the level 2 objectors to reconsider their participation in the rehearing. I made directions on 12 February 2021 requiring all active parties to file and serve on NAC a notice of representation. If an objector did not do so, that would be their indication that they no longer wished to be a level 2 objector/active party.
  1. [27]
    It is a matter of public record that some of the self-represented objectors were concerned about their exposure to an order to pay costs of the original hearing, the limited rehearing, and this rehearing. Given the history of this matter, that concern is understandable. After NAC made an open offer about costs, all the level 2 objectors from the original hearing, except OCAA, filed a “Notice of Election” not to be an active party in this rehearing.
  1. [28]
    NAC say that, having elected to be “non-active” parties, they cannot depose to an affidavit to be used in the hearing. That would make them an active party and they have not applied to change their status.
  1. [29]
    The term “non-active party” is not defined in the PD. Nor does the PD prohibit an objector who is not an active party from giving evidence in support of an active party’s objection. NAC submitted that this is a necessary implication from other provisions in the PD.
  1. [30]
    First, the PD provides that “an active party may lead evidence about the issues for the MOH.”[20] Second, at the end of the hearing, the Court will make directions for submissions by “all active parties.”[21] Other parts of the PD refer to documents being filed and relied upon by active parties.[22] The implication NAC urges on the Court is that these rights conferred on active parties cannot be exercised by an objector who is not an active party. I accept that is a necessary implication from those provisions. Otherwise there would be no utility in the election/application process.
  1. [31]
    That does not mean the Court should make the order NAC seeks on this application. As senior counsel for NAC agreed in oral submissions, the PD would not prevent an objector who is an active party from issuing a subpoena requiring another objector to give evidence in support of the active party’s objection.
  1. [32]
    That reflects the distinction between the status of a person as a party to proceedings and as a witness called to give evidence in a hearing, which this Court has recognised when determining costs orders for self-represented parties who have also given evidence in a hearing.[23] Senior counsel for NAC described that as a distinction without a difference, but that does not fit well with his concession about subpoenaed evidence.
  1. [33]
    The PD addresses the position of an objector as a party to a hearing, not as a witness called to give evidence during a hearing.
  1. [34]
    There is no evidence that either Ms Harrison or Mr Beutel wish to accept the responsibilities or assert the rights of an active party under the PD. In fact, the deponents confirm their inactive status and state their evidence is confined to OCAA’s grounds of objection.[24]
  1. [35]
    It is OCAA that seeks to lead evidence from them as relevant witnesses. By its terms, the PD does not prevent it from doing so. Given the requirement this Court observe procedural fairness in conducting the hearing and making the recommendation, the PD should not be interpreted in the way NAC contends.

The “no costs” agreement

  1. [36]
    Ms Harrison and Mr Beutel responded to an open offer by NAC about the costs of the hearing. The terms of the offer are recorded in Notices of Election they signed and filed, which contained the following statement:

“the Applicant has instructed that it will not pursue any costs order against any objector if they cease to be an active objector by 4pm Monday 22 March 2021 and remain a non-active objector for the duration of the proceeding. For the sake of clarity, in those circumstances, the only material of the objector that the Court could consider would be their objections.”[25]

  1. [37]
    As well as the change of status, which I have dealt with, NAC relies on the concluding sentence as an undertaking that would prevent OCAA from leading evidence from them. OCAA says that is not the correct interpretation of the agreement and, in any case, it cannot be enforced against it and it should not be compromised in the evidence it can lead in support of its objection.
  1. [38]
    Before turning to those arguments, senior counsel for OCAA submitted NAC had taken advantage of the pressure of costs in their negotiations with those objectors. Senior counsel for NAC strongly contested that submission. It is not necessary for me to address that because I have decided the application for other reasons that follow.
  1. [39]
    The clauses on which NAC relies must be construed objectively, by determining what a reasonable person would understand the them to mean. The Court must give effect to that meaning if the words are unambiguous and capable of being understood on their face.[26] If the words are ambiguous, the Court will consider the aims and purposes of the agreement bearing in mind the parties can be taken objectively to seek to produce a commercial result.[27]
  1. [40]
    I accept OCAA’s submission that when the clause is interpreted in the statutory context for a mining objection hearing, the plain meaning of the clauses is that Ms Harrison and Mr Beutel agreed to be and remain inactive parties in return for NAC’s undertaking that it would not seek costs against them.
  1. [41]
    If there is ambiguity, I accept OCAA’s submission that should be resolved against NAC’s proposed interpretation. Ms Harrison and Mr Beutel could not legally compromise OCAA’s position in the hearing and must objectively be presumed not to have intended to do so.
  1. [42]
    Further, the order NAC seeks has the effect of specific performance of an agreement against OCAA, to which it is not a party. There is no dispute that OCAA’s legal representatives, the Environmental Defenders Office, assisted the self-represented objectors in their dealings with NAC. NAC asks the Court to infer the EDO acted on OCAA’s instructions and, on that basis, accept there is no unfairness in OCAA being bound to the consequence of the no costs agreement.
  1. [43]
    In his correspondence with the lawyers for NAC, Mr Ryan, from the EDO, said it was “endeavouring to assist the other objectors and the Court by seeking to consolidate and reduce the number of grounds of objection and the issues in dispute.”[28]
  1. [44]
    It is not unusual for the representative of one party to provide some procedural assistance to another where it does not conflict with their client’s interests, to the benefit of the Court process. The Court must presume the representative gives that assistance with the client’s knowledge and consent. It would be improper, otherwise, for them to do so. However, the Court should be very cautious about using an inference about instructions to justify constraining a party in advancing their own case.
  1. [45]
    The Court must also consider the nature of the hearing. As explained at [6] – [16], the Court is engaged in an administrative process, subject to a statutory regime that governs the validity of the decision-making process and the authority of the Court’s recommendation.
  1. [46]
    An agreement between NAC and any one or more objector may operate as an estoppel as between those parties on judicial review.[29] However, it “could not alter the underlying substantive question of statutory authority and statutory validity.”[30]
  1. [47]
    The Court must afford procedural fairness to the parties. That is not an abstract concept. It is essentially practical. The concern of the law is to avoid practical injustice.[31]
  1. [48]
    OCAA is a not for profit community group that has elected to be an active party in a mining objection hearing. Its grounds of objection raise the impacts on air quality and noise. It could only ever lead evidence in support of its objection through third party witnesses, whether lay persons who say how they have or fear they will be affected or experts who can assist the Court to assess potential impacts.
  1. [49]
    To prevent OCAA from leading evidence from lay witnesses who could say what they had experienced in the past and what they anticipated from an extension of the mine would be a practical injustice. It would mean the Court could not receive relevant evidence from potentially affected persons. It would also prevent expert witnesses from advising the Court on a matter of public importance.
  1. [50]
    To make the order NAC seeks would not be in the interests of justice,[32] would deny OCAA procedural fairness, and would compromise the statutory validity of the hearing.
  1. [51]
    OCAA conceded NAC may be able to argue that some passages of the disputed affidavits go beyond the scope of OCAA’s grounds of objection. NAC and OCAA agreed that, if I refused NAC’s application, I should make directions for NAC to object to particular passages. My orders provide a process for that to occur.

Briefing expert witnesses

  1. [52]
    The second application filed by NAC raised various disputes between the parties in briefing the expert witnesses. I have made orders on those I consider appropriate, given my concern not to compromise the statutory validity of the hearing.
  1. [53]
    My orders are intended to efficiently and clearly brief the expert witnesses, while reserving the parties’ position on specific matters they may wish to contest at the hearing. That is consistent with the Court’s objective “to make timely, efficient, fair, and effective use of expert evidence.”[33]
  1. [54]
    The parties have provided detailed written submissions that are on the Court’s file. I will provide only a brief explanation for each order in turn.

The brief will include objections made by non-active objectors and the instructions will confirm that the experts may have regard to them but are not asked to provide an opinion about them.

  1. [55]
    This order reflects an agreed position reached by the parties during argument.

Subject to resolving objections about the affidavits of Ms Harrison and Mr Beutel, they will be included in the brief.

  1. [56]
    Except for the argument that some passages go beyond the scope of OCAA’s objections, there was no contest that this evidence is relevant for experts assessing the potential noise and air quality impacts of the proposed operations. Once NAC’s objections on that ground are resolved, the affidavits must be provided to the experts. Their brief should not be delayed by that process.

The brief will include the aerial photograph that now appears at [3.33] of OCAA’s proposed brief of instructions and further aerial photographs at reasonable intervals to illustrate the progression of mining since the commencement of stage 2 of the mine in 2006.

  1. [57]
    Although NAC questioned their utility, I consider the aerial photograph included by OCAA, and the further photographs I have directed, will provide useful visual orientation for questions the expert witnesses are asked to address. That is particularly helpful for one of OCAA’s expert witnesses, who is based in Victoria and might otherwise not be able to undertake a site inspection because of COVID-19 restrictions. The brief should not be delayed by any disputes about what photographs should be included. They should be provided as and when agreed or directed.

The brief will include a clear statement agreed by the active parties which identifies the area of and activities proposed for ML50232 that the experts must consider in preparing their report.

  1. [58]
    OCAA and the statutory party want the experts to understand what the application entails. NAC wants to preserve its position in relation to a legal argument about the extent to which any activities are authorised by existing mining leases and the current environmental authority. This order requires the parties to agree on a clear statement of the area and activities the experts must consider. This deals with NAC’s concern that the formulation proposed by OCAA might otherwise compromise their position in relation to the legal issue.
  1. [59]
    The CMEE Convenor can assist the parties to settle the statement if that is necessary.

The brief will not include the instruction proposed in the second sentence of [13.2] of OCAA’s proposed brief of instructions.

  1. [60]
    That sentence reads:

“Your duty to the Court overrides any duty of confidentiality you may have to any party or any other person and you should raise any material you have in your possession or are aware of that is adverse to your client’s case that is relevant to the issues in dispute, including conversations that you have had or observations that you have made yourself.”

  1. [61]
    OCAA submitted this simply reflected the duties stated in the Land Court Rules 2000 24(e) and 24C, but accepted it was an unorthodox expression. I accept NAC’s objection that this sentence is an unconventional overlay directed to the issues in dispute that requires the experts to form a judgment about matters that are not easily understood by a lay person, including confidentiality and legal professional privilege. I do not consider the further direction helpful in briefing the experts. Nor does it appear to be necessary.

The question 2 in OCAA’s proposed list of issues for the noise experts will be amended as directed

  1. [62]
    The relevant amendment is to Q2a so that it reads as follows:

“Please confine your answer to considering whether the monitoring conditions are adequate to enable the administering authority to assess compliance and people at noise sensitive places around the mine to understand performance in relation to noise having regard to, without limitation…”

  1. [63]
    OCAA’s proposed formulation asked the experts to consider whether the monitoring conditions are adequate for both the administering authority and people at noise sensitive places to assess compliance. The formulation I direct acknowledges that it is the administering authority’s role to assess compliance, but that people at noise sensitive places have an interest in understanding how the mine is performing in relation to noise.

Subject to the Applicant’s reservation of its right to argue at or before the hearing that the following questions fall outside the scope of OCAA’s objections and that the Court cannot receive evidence in relation to them the brief will include in the list of issues the following questions:

  1. [64]
    The questions to be included in the list of issues for the experts will include the questions set out as follows. The parties agreed to these questions in part.
  1. [65]
    For both air and noise experts:

“3. Whether the conditions in the Applicant’s Draft EA and/or the Statutory Party’s draft EA:

  1. are appropriate in respect of the process for auditing complaints, compliance or data records; and
  2. should specify mitigation steps in the event of non-compliance and if so, whether they do so appropriately.”
  1. [66]
    For air experts:

“5. Will compliance with the air quality conditions in the Applicant’s Draft EA and/or Statutory Party’s Draft EA, and any Additional and Amended Conditions require mitigation measures to be undertaken including any operational or management constraints on the Mine?

If so, to the extent that you are able within your field of expertise, please describe the range of possible mitigation measures required to achieve compliance.”

  1. [67]
    For noise experts:

“5. Will compliance with the air quality conditions in the Applicant’s Draft EA and/or Statutory Party’s Draft EA, and any Additional and Amended Conditions require mitigation measures to be undertaken including any operational or management constraints on the Mine?

If so, to the extent that you are able within your field of expertise, please describe the range of possible mitigation measures required to achieve compliance.

In answering this question, if a weather forecasting and adaptive management system is required to achieve compliance, to the extent that it falls within your area of expertise, please comment on whether you consider that system to be effective.”

  1. [68]
    To the extent that they were agreed, the parties considered that the reservation protected NAC’s right to argue at or before the hearing that the questions, and therefore the experts’ answers, go beyond the scope of OCAA’s objections.
  1. [69]
    One of the matters that remained in dispute was OCAA’s inclusion in Q5 for both experts, questions about the modelling in the EIS. There is no link drawn in the draft environmental authority between modelling in the EIS and the mitigation measures required of NAC. The brief includes the EIS and the experts can refer to it in advising the Court about mitigation measures. I am not persuaded more direction is required on the point.
  1. [70]
    The remaining issue for these questions relates to the formulation of Q5 for the air quality experts. OCAA included a question about the extent to which equipment shut down is likely to be required over the life of stage 3 of the mine. I accept NAC’s submission that this raises questions better directed to a mine engineer or mine planner.

The brief will include in the list of issues the questions 6 and 7 as formulated by OCAA for each of the air and the noise experts.

  1. [71]
    There was a more significant dispute between the parties about the way in which OCAA had formulated these questions, which deal with the past performance of NAC against the current air quality and noise conditions. The questions are lengthy and there are some differences between the questions posed for the different experts, but it is not necessary to set them out in full here.
  1. [72]
    NAC accepts that its past performance in relation to air quality and noise is raised by OCAA’s objections.
  1. [73]
    In essence, the dispute about these questions has two aspects. The first is the interpretation of the existing conditions. The second, is whether the experts should or could be asked to answer a question about unreasonable interference with amenity.
  1. [74]
    During oral argument, counsel for the statutory party observed that the parties no longer appeared to contend for different interpretations of the conditions. I am not so sure the parties were in complete agreement, but the following propositions did appear to be common ground:
  1. The environmental authority does not authorise NAC to cause an environmental nuisance at any noise sensitive place.
  1. An environmental nuisance is an unreasonable interference with an environmental value, including public amenity. [34]
  1. If NAC can demonstrate it has not exceeded levels prescribed by the conditions, then it will not have breached the prohibition on causing environmental nuisance at any noise sensitive place.
  1. [75]
    One significant point of contention was whether the conditions were “complaint driven”, as NAC described them. To the extent that a complaint might cause the statutory authority to require NAC to undertake monitoring, it is fair to describe them as complaint driven. However, that says nothing about the state of NAC’s compliance in the absence of monitoring.
  1. [76]
    The current conditions B1 and D1 do not authorise environmental nuisance at a noise sensitive place at any time. Conditions B3 and D3 provide a defence to an allegation of environmental nuisance, by demonstrating compliance with specified limits. The absence of monitoring under B3 and D3 does not, however, equate to authorisation of an environmental nuisance.
  1. [77]
    NAC submitted OCAA’s formulation of Q6 & Q7 would set the experts off on a wide-ranging enquiry as to compliance without relevance to the specified limits. It proposed a form of questions that confined the experts to assess compliance against specified monitoring.
  1. [78]
    OCAA submitted the question of past performance could not be confined to considering only NAC’s limited monitoring records. OCAA’s question assumes access to a broader range of data.
  1. [79]
    This intersects with another dispute about the information to be included in the brief. OCAA requested the brief include information about complaints made about air quality and noise and logs that form part of NAC’s implementation of a Trigger Action Response Plan (TARP) to continuously monitor operations and environmental circumstances and adapt its operations to manage its emissions. NAC has agreed to provide some of the TARP material, but not for the whole period sought by OCAA. OCAA may well subpoena the remaining records if NAC does not provide them.
  1. [80]
    To the extent that NAC might object to producing that material on the grounds of relevance, that is not made out. The material requested is clearly relevant.
  1. [81]
    NAC may well have cause to resist a subpoena to produce all those records on some other ground, such as oppression, and that can be determined by the member conducting the hearing, if need be.
  1. [82]
    However, I accept that OCAA’s formulation of the questions better reflects the operation of the existing conditions. Its past performance can not be assessed only by reference to monitoring undertaken pursuant to conditions B3 and D3.
  1. [83]
    NAC submitted the experts could not express an opinion on whether there had been an unreasonable impact on amenity. If the submission relates to admissibility, I reject that. Ultimately it is a question for the Court, but opinion evidence on whether an amenity impact is unreasonable is admissible.[35]
  1. [84]
    It may be that an expert feels unable to express an opinion on the information available. If that is the case, they will say so.

The brief will include the documents described at paragraph 4(f)-(i) of the Issues not agreed by the Applicant and OCAA for the brief dated 16 August 2021.

  1. [85]
    It is not necessary to set out the documents requested there, except to say that they were all produced during the original hearing, except for category 4(g), the logs of actions taken under the TARP. I have already addressed that category above. Otherwise, there can be no oppression in producing material available at the original hearing and already on the public record.

To the extent that there remains any dispute about documents requested by OCAA and not produced by the Applicant, including the documents referred to in paragraph 4(g) of the issues not agreed, that will be determined by the procedures that apply to subpoenas.

  1. [86]
    There remains a dispute between the parties about some documents not produced for the original hearing. That includes the TARP records, which I have addressed. The other records, which are meteorological records, appear on their face to be relevant in assessing whether a noise sensitive place might be affected by noise or dust from the mine. However, I have not heard detailed argument about relevance, nor is there proper evidence about other grounds of objection, such as oppression.
  1. [87]
    If OCAA maintains its request for those records, it should issue a subpoena. If NAC objects to the production of any of them that can be determined by the member allocated to conduct the hearing.

The parties must not delay briefing the experts because of outstanding disputes regarding the affidavits or further documents. Those further documents and instructions can be provided to the experts when those disputes are resolved.

  1. [88]
    This order needs no explanation.
  1. [89]
    Finally, I have made an order that would allow any party to seek a costs order, failing which costs will be reserved.
  1. [90]
    In conclusion, my orders, and these reasons, deal with as many of the issues as I consider I can properly decide, given the statutory framework and the material provided to me. Although both NAC and OCAA made submissions that criticised the other for the time or approach taken in response, there is no evidence that either has acted unprofessionally or with a view to delay. To the contrary, the parties narrowed their dispute through their written submissions and continued to find common ground during and after argument. That is worthy of note in a process that has such a lengthy and tortuous history as this one.

Footnotes

[1]Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2.

[2]Ibid at [45]; Land Court Act 2000 s 14.

[3]Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2 at [47], [55], [57] and [65].

[4]Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [37]-[38] per Gleeson CJ; Minister for Immigration & Border Protection v WZARH [2015] HCA 40 at [60] (Gageler and Gordon JJ).

[5]Mineral Resources Act 1989 s 268(3).

[6]MRA s 252A.

[7]Environmental Protection Act 1994 s 152.

[8]Ibid s 182(2).

[9]MRA s 265(2); EPA s 185.

[10]MRA s 265(9); EPA s 188.

[11]MRA s 269(1); EPA s 190(1).

[12]MRA s 268(2).

[13]EPA s 186.

[14]Practice Direction (PD) 4 of 2018 – Procedure for Mining Objection Hearings at [2].

[15]PD 4 of 2018 at [15].

[16]PD 4 of 2018 at “Words and Meanings”.

[17]PD 4 of 2018 at [19].

[18]PD 4 of 2018 at [22].

[19]PD 3 of 2015 – Objectors Participation in Objections Hearings.

[20]PD 4 of 2018 at [72].

[21]PD 4 of 2018 at [75].

[22]PD 4 of 2018 at [36]–[37].

[23]Deimel v Phelps [2020] QLC 2 at [22]–[24].

[24]Affidavit of G N Beutel (Document ID F.0075), filed 5 August 2021 at [13]; Affidavit of P A Harrison (Document ID F.0074), filed 5 August 2021 at [2].

[25]Notice of Election as an Inactive Objector of A Mason (Document ID F.0026), Notice of Election as an Inactive Objector of A Harrison (Document ID F.0028), and Notice of Election as an Inactive Objector of G Beutel (Document ID and F.0029).

[26]Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24 at [374].

[27]Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45 at [2].

[28]Ryan at SPR-24 p 47.

[29]Fulham Football Club v Cabra Estates [1992] BCC 863 at 874.

[30]Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2 at [43].

[31]Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [37] per Gleeson CJ.

[32]Land Court Act 2000 s 22

[33]PD 6 of 2020 – Procedures for Expert Evidence at [6].

[34]EPA ss 9, 15.

[35]Stewart & Others v Moreton Bay Regional Council & Another [2015] QPEC 26 at [54]-[72] and [80]-[90] per Andrews DCJ.

Close

Editorial Notes

  • Published Case Name:

    New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc. & Ors

  • Shortened Case Name:

    New Acland Coal Pty Ltd v Oakey Coal Action Alliance Inc.

  • MNC:

    [2021] QLC 29

  • Court:

    QLC

  • Judge(s):

    FY Kingham President

  • Date:

    27 Aug 2021

Appeal Status

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

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