Whitehaven WS Pty Ltd v Australian Conservation Foundation Inc
[2025] QLC 13
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- Unreported Judgment
- Whitehaven WS Pty Ltd v Australian Conservation Foundation Inc[2025] QLC 13
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Whitehaven WS Pty Ltd v Australian Conservation Foundation Inc[2025] QLC 13
Whitehaven WS Pty Ltd v Australian Conservation Foundation Inc[2025] QLC 13
LAND COURT OF QUEENSLAND
CITATION: | Whitehaven WS Pty Ltd v Australian Conservation Foundation Inc & Ors [2025] QLC 13 |
PARTIES: | Whitehaven WS Pty Ltd (applicant) v Australian Conservation Foundation Inc, Mackay Conservation Group Inc (active objectors) |
And | |
Chief Executive, Department of Environment, Tourism Science and Innovation (statutory party) | |
FILE NO: | MRA080-24 |
PROCEEDING: | Application for mining lease and objections thereto, objections to environmental authority |
DELIVERED ON: | 3 July 2025 |
DELIVERED AT: | Brisbane |
HEARD ON: | 2 July 2025 |
HEARD AT: | Brisbane |
MEMBER: | N.D. Loos |
ORDER/S: |
|
CATCHWORDS: | PROCEDURE – ADMINISTRATIVE LAW – Procedural aspects of evidence – Expert reports and expert evidence – Where one party applies for leave to file further evidence – Where the party says it foreshadowed the further evidence in July 2024 – Where the party says it would be procedurally unfair to restrict it from leading further evidence of the kind – Where the opposing party says the further evidence would raise issues of procedural unfairness – Whether the risks of procedural unfairness can be overcome – Further evidence allowed |
Allianz Australia Insurance Ltd v Mashaghati [2018] 1 Qd R 429 | |
APPEARANCES: | J O'Connor (instructed by MinterEllison) for the applicant E Nekvapil SC and K McAuliffe-Lake (instructed by Environmental Defenders Office) for the active objectors A Hellewell (instructed by the Department of the Environment, Tourism, Science and Innovation) for the statutory party |
Introduction
- [1]There is disagreement about whether Dr Setu Pelz ought to be permitted to prepare a supplementary individual expert report.
- [2]The active objectors propose that he do that. They seek an order that he be permitted to do it by 31 July 2025.
- [3]Whitehaven opposes Dr Pelz producing a further report.
- [4]The statutory party takes no position on the matter.
- [5]Dr Pelz is nominated by the active objectors to give expert evidence in the field of ‘Climate Scenarios’. There is no opposing expert nominated by Whitehaven.
- [6]The disagreement came before the Court after the parties requested a review of the matter. That review occurred on 2 July 2025.
- [7]No application has been filed about Dr Pelz. The active objectors handed up a draft Order setting out the relief they seek. That draft Order states:
By 4.00pm [Thursday, 31 July 2025], the ACF Parties must file in the Land Court Registry and serve on the Applicant and the Statutory Party the statement of evidence of Dr Setu Pelz in reply to Annexure 4 to the Coal and Energy Markets Joint Expert report titled “Gresswell Report”.
- [8]The issue arises late. The hearing is listed to begin on 21 July 2025.
Context
- [9]This is not the first time that the Court has been asked to resolve a disagreement about how Dr Pelz’s evidence should be prepared.
- [10]The parties have exchanged correspondence about Dr Pelz since July 2024. There is a complex history about the role that his evidence ought to play in the proceeding.
- [11]The dispute in correspondence back and forth culminated in an argument before the Court on 5 March 2025. Following on from that argument, on 18 March 2025, it was Ordered that:
- by 4 April 2025, the active objectors file and serve a statement of evidence of Dr Pelz;[1]
- the Market Experts and Dr Pelz were to participate in a meeting of experts, with Dr Pelz only involved to the extent of issues relating to climate scenarios;[2]
- that joint meeting should produce a report authored by the Market experts and also Dr Pelz (to the extent he had participated in the meeting).[3]
- [12]Dr Pelz prepared an individual report on time and attended the joint expert meeting process.
- [13]That joint expert meeting process started in the week beginning 7 April 2025. It concluded on 13 May 2025.
- [14]Mr Gresswell included as part of the joint expert report, an individual report that he had prepared. It became Annexure 4 to that joint report. It is dated 30 April 2025.
- [15]The active objectors seek an opportunity for Dr Pelz to respond to Mr Gresswell’s Annexure 4 document.
- [16]The active objectors submit that they ought to be able to put their best case forward. They say that that involves Dr Pelz having an opportunity to respond to Annexure 4. They say that the individual report of Dr Pelz may include a figure of the kind that appears at [930] of Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6)[4]. They say that the individual report that they contemplate coming from Dr Pelz will be confined and, based on the way that he expressed himself in his individual report dated 4 April 2025, it can be expected that Dr Pelz will express himself in a concise way.
- [17]Whitehaven forcefully submit that to make the order sought by the active objectors would “cause chaos” in two ways:
- it would give rise to the real risk that Dr Pelz produces evidence that becomes a second expert opinion called by the active objectors within the one area of expertise. That is, Whitehaven says that the active objectors already rely on the evidence of Dr Wilson in the field of coal and energy markets and that an individual report from Dr Pelz would effectively offer a second expert opinion within that field; and
- it would give rise to the real risk Dr Pelz would “second guess” the outcome of the coal and energy markets joint expert report. Mr Gresswell may then have to add a further response. Mr Gresswell may not have time to properly respond to Dr Pelz’s individual report. That is particularly so given that 31 July 2025 – the date that the active objectors propose the report be delivered – will be after the hearing has started.
- [18]Whitehaven rely on an affidavit from Mr Hanmore[5] that exhibits correspondence about this issue. On 16 June 2025, Whitehaven’s solicitor wrote[6] to the representative of the active objectors and pointed out that the Court had cautioned against individual reports commenting on joint expert reports. That is particularly undesirable after such a careful case management process has been utilised to have the joint expert reports prepared in a proper sequence and on time.
- [19]Whitehaven submits that it would be procedurally unfair to it, for the Court to make the Order sought by the active objectors.
- [20]The active objectors submit that it would be procedurally unfair to them, for the Court to shut them out from leading evidence that would advance their case.
Principles
- [21]The parties agree on the applicable principles.
- [22]The High Court has identified that any jurisdiction conferred on the Land Court is necessarily conditioned by the requirement to observe procedural fairness in the exercise of that jurisdiction: Oakey Coal Action Alliance v New Acland Coal Pty Ltd.[7]
- [23]As to the obligation to afford procedural fairness, the parties direct attention to the decision of the Victorian Court of Appeal in Roberts v Harkness.[8] The Court said, at [48], that:
… it is an essential requirement of a fair hearing that each party by given a reasonable opportunity of presenting its case whether in writing or orally or both. This will ordinarily include being informed of the case to be advanced by the opposing party and having an opportunity to respond.
- [24]At [49], that Court identified that what is reasonable for this purpose will depend on the circumstances of the case. The Court identified matters to be considered in determining the practical content of fairness in the particular case. The statutory framework was also identified as being a key consideration.
- [25]Finally, the parties draw attention to the decision of the Queensland Court of Appeal in Sanrus Pty Ltd v Monto Coal 2 Pty Ltd.[9] There, the reasons of McMurdo JA at [29]-[31] set out what the trial judge had said were the relevant considerations.
- [26]Within that summary is reference to the Court of Appeal decision in Allianz Australia Insurance Ltd v Mashaghati.[10]
- [27]In Allianz Australia, the then President of the Court of Appeal said that Aon Risk Services Australia Ltd v Australian National University[11] stands for the proposition:
that a just resolution of proceedings remains the paramount objective and that while speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution, these factors must not detract from a proper opportunity being given to the parties to put their case.
Resolution
- [28]Applying the principles from those cases, the active objectors should have the order they seek. That will keep open the proper opportunity for them to put their case.
- [29]The two potential matters of chaos identified by Whitehaven can be managed to alleviate or avoid unfairness to Whitehaven.
- [30]As to the first of the two chaos matters, if the Pelz individual report arrives and it is, in truth, a second expert opinion within a single field of expertise – then if objection is taken to the Dr Pelz report on that basis, those aspects of it are susceptible to being excluded. An objection of that kind is a matter that can be dealt with expeditiously even after the hearing has started.
- [31]As to the second of the two chaos matters, if the Pelz individual report arrives and Mr Gresswell reviews it and says he cannot respond to it in time – Whitehaven should draw that to the Court’s attention immediately. Whitehaven may choose at that point to seek to have the Pelz individual report excluded.
- [32]The Court has not been given an updated version of the hearing plan. It is unclear how long after 31 July Mr Greswell will give his evidence. It may be possible for the parties to schedule Mr Gresswell late within the listed hearing dates, to give him the longest possible window of opportunity to consider Dr Pelz’s individual report.
- [33]I understand that in the middle of a trial, it is difficult for legal representatives and experts to act at short notice to respond to new evidence. They will, at that point, already have set tasks that will fully occupy their time. It is not the Court’s expectation that Mr Gresswell ought to have to drop everything and respond at very short notice to this new individual report of Dr Pelz.
- [34]The potential matters of unfairness can be managed once the Pelz report is available. Dealing with those matters then is preferable to shutting out the active objectors from advancing their evidence now. That is particularly so when the length and breadth of the Pelz report is unknown.
- [35]Whitehaven submit that in the event the Court decides to make the proposed draft Order, that Order ought to be accompanied by an additional order requiring the written instructions to Dr Pelz to be provided to the parties. Orders of that kind have been made in this matter previously – see for example paragraph 6(b) of the Order of 28 May 2025. It is appropriate that such additional order be made.
- [36]The Orders are:
- By 4.00pm on Thursday, 31 July 2025, the ACF Parties must provide to the Applicant and the Statutory Party a copy of the brief of instructions provided to Dr Setu Pelz and any document included or referred to in the brief that has not been disclosed;
- By 4.00pm on Thursday, 31 July 2025, the ACF Parties must file in the Land Court Registry and serve on the Applicant and the Statutory Party the statement of evidence of Dr Setu Pelz in reply to Annexure 4 to the Coal and Energy Markets Joint Expert report titled “Gresswell Report”.
Footnotes
[1] Order 6(b)(iii)-(iv).
[2] Order 7(c).
[3] Order 10.
[4] [2022] QLC 21.
[5] Filed on 1 July 2025.
[6] WWS.2504, see paragraph 28 of the Hanmore affidavit.
[7] (2021) 272 CLR 33 at [47] (per Kiefel CJ, Bell, Gageler and Keane JJ).
[8] (2018) 57 VR 334 at [47]-[50].
[9] [2019] QCA 160.
[10] [2018] 1 Qd R 429 at [55]-[56].
[11] (2009) 239 CLR 175.