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CITE

Unreported Judgment

Rolleston Coal Holdings Pty Limited v The Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships[2021] QSC 328Williams J
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Rolleston Coal Holdings Pty Limited v The Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships[2021] QSC 328

SUPREME COURT OF QUEENSLAND

CITATION:	Rolleston Coal Holdings Pty Limited & Ors v The Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships [2021] QSC 328
PARTIES:	ROLLESTON COAL HOLDINGS PTY LIMITED ACN 098 156 702 (first applicant) SUMISHO COAL AUSTRALIA PTY LIMITED ACN 061 524 249 (second applicant) ICR AUSTRALIA PTY LTD t/a ITOCHU COAL RESOURCES AUSTRALIA PTY LIMITED ACN 072 596 733 (third applicant) ICRA SMM PTY LTD ACN 106 260 584 (fourth applicant) v THE DEPUTY PREMIER, TREASURER AND MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER PARTNERSHIPS (respondent)
FILE NO/S:	BS 14131 of 2019 (lead matter) BS 14133 of 2019 BS 14135 of 2019 BS 14137 of 2019 BS 10372 of 2020 BS 10374 of 2020 BS 10375 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	30 November 2021
JUDGE:	Williams J
ORDER:	In light of these reasons, the parties are to prepare orders reflecting the particular amendments allowed in respect of each proceeding and the outcome in respect of the applications for disclosure. I will hear further from the parties in respect of costs, including reserved costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – GENERALLY – where the applicants are joint venturers who sell coal from various mines in Queensland, namely Newlands, Oaky Creek, Collinsville and Rolleston mines – where the first applicant was the manager and operator of the mines on behalf of the joint venture participants and was a company within the Glencore group of companies – where the seven related proceedings were commenced by the applicants by originating application in relation to decisions by the respondent relating to the applicants’ liability to pay royalties – where by interlocutory applications brought in seven proceedings commenced by way of originating applications for statutory orders of review and for declaratory orders the applicants seek leave to further amend the originating applications and the applicants’ Amended Statement of Facts, Issues and Contentions – whether leave should be granted PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – where disclosure is not as of right in judicial review proceedings under the Judicial Review Act 1991 (Qld) – where the Court has a discretion to order disclosure, including disclosure in judicial review proceedings – where the applicants seek orders for disclosure of documents by the respondent – whether orders for disclosure of the documents should be made Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, considered Combined Property Holdings Pty Ltd v Galea & Ors [2020] QSC 338, cited Hartnett v Hynes [2009] QSC 225, considered Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68, considered Mineral Resources Act 1989 (Qld), s 331B, 333Q, 844 Uniform Civil Procedures Rules 1999 (Qld), r 5, r 375, r 377, r 573
COUNSEL:	B O'Donnell, and M Barnes, for the applicants M Brennan, and M Hindman, and S Amos, for the respondent
SOLICITORS:	King & Wood Mallesons for the applicants Crown Law for the respondent

[1]
By interlocutory applications brought in seven proceedings commenced by way of originating applications for statutory orders of review and for declaratory orders, the applicants seek:
1. (a)
  leave to further amend the originating applications and the applicants’ Amended Statement of Facts Issues and Contentions (ASFIC); and
2. (b)
  orders for disclosure of documents by the respondent.
[2]
These reasons have been prepared in respect of BS 14131 of 2019 but apply, as relevant, to BS 14133 of 2019, BS 14135 of 2019,^[1] BS 14137 of 2019,^[2] BS 10372 of 2020,^[3] BS 10374 of 2020^[4] and BS 10375 of 2020.^[5]
[3]
The orders sought in the amended interlocutory application (interlocutory application) are as follows:

“1A. The Applicants have leave to amend the Applications for a Statutory Order of review and the Applicants’ Statement of Facts, Issues and Contentions in accordance with exhibits HJM-A.42 and HJM-A.49^[6] to the affidavit of Hamish John William Macpherson sworn 4 November 2021.

1. Pursuant to the Court’s power under rules 209(1)(c) and rule 573(1), that the Respondent is to provide disclosure of the following categories of documents by reference to the fourth affidavit of G.J. Jones filed 29 June 2021:

(a)
in respect of the period 1 April 2012 to 19 October 2012:

(i)
a copy of each Merlin Royalty Assessment Details, as referred to at paragraphs 5(d) – (f) of the Fourth Affidavit of Mr. Jones;

(ii)
working papers or other records which record the making of an assessment or reassessment in respect of the return by a person within the Office of State Revenue, and who that person was;

(iii)
documents containing any calculations by a person within the Office of State Revenue relating to any such assessment or reassessment, and any underlying source documents prepared, used or relied on to make the assessment or reassessment;

(iv)
in respect of the person who made the assessment or reassessment, any records or documents evidencing the authority the person held on behalf of the Chief Executive to make a royalty assessment or reassessment;

(b)
in respect of the period 20 October [2012]^[7] to January 2013:

(i)
any working papers or other records recording the making of an assessment or reassessment in respect of the return by a person within the Office of State Revenue as described by Mr. Jones at paragraph 10 of his Fourth Affidavit, and who that person was;

(ii)
each Liability Notice that was prepared and records indicating who prepared the Liability Notice;

(iii)
documents containing any calculations by a person within the Office of State Revenue relating to any such assessment of reassessment, and any underlying source documents prepared, used or relied on to make the assessment or reassessment;

(iv)
in respect of the person who made the assessment or reassessment, any documents or other records evidencing the authority that person held from the Chief Executive to make a royalty assessment or reassessment;

(i)
in relation to each Liability Notice that was generated and, after 1 July 2014, each Assessment Notice that was generated, documents recording or evidencing who prepared the notice;

(ii)
any working papers or other records recording the making of an assessment or reassessment in respect of the return by a person within the Office of State Revenue, and who that person was;

(iii)
documents containing any calculations by a person within the Office of State Revenue relating to any such assessment or reassessment, and any underlying source documents prepared, used or relied on to make the assessment or reassessment;

(iv)
in respect of the person who made the assessment or reassessment, any documents evidencing the authority the authority [sic] that person held on behalf of the Chief Executive (until 31 August 2013) and thereafter from the Minister to make a royalty assessment or reassessment; and

(v)
any documents recording the communication of a Liability Notice or an Assessment Notice to the applicants.

2A. Pursuant to the Court’s power under rules 209(1)(c) and rule 573(1), that the Respondent is to provide disclosure of any documents or other records that record or evidence, in respect of the period 2 August 2013 to 26 November 2019:

(i)
the progress of the gross value royalty decision (GVRD); and

(ii)
what occurred in the making of the GVRD over that period.”

[4]
In the respondent’s written submissions, the respondent^[8] consents to the applicants removing Grounds Two and 10 and does not oppose the inclusion of the additional particular to Ground One or the amendment to Ground 12 as proposed.
[5]
Further, in oral submissions at the hearing the respondent consented to a direction for the disclosure of the documents in the categories identified in paragraphs 1(a)(i), (ii) and (iv), 1(b)(i), (ii) and (iv) and 1(c)(i), (ii) and (iv) of the interlocutory application.
[6]
At the conclusion of the hearing, the respondent was directed to disclose the documents in those categories by 17 December 2021.
[7]
Further, in respect of the documents sought in paragraph 2A of the interlocutory application, the respondent consented to and was directed to disclose the following specific documents by 17 December 2021:
1. (a)
  A document identified as “index to relevant correspondence file”; and
2. (b)
  A printout of the version history of the draft GVRDs.
[8]
Consequently, the proposed amendments in relation to Grounds 3A, Six, Eight and what is referred to as “Ground 7” remain to be determined.
[9]
Further, the application for disclosure contained in paragraphs 1(c)(v) and 2A requires determination.
[10]
The applicants do not press for an order for disclosure in respect of the documents at paragraphs 1(a)(iii), 1(b)(iii), 1(c)(iii) of the interlocutory application at this time and will consider the issue further once they have seen the documents disclosed by the respondent.

Documents relied upon for the application

[11]
Both parties read documents that have been filed in the proceedings but also rely on documents which have been delivered in relation to the proceedings but have not yet been filed. This arrangement is in accordance with the case management directions, as some of the documents are claimed to contain confidential information.
[12]
Accordingly, for the purposes of the interlocutory application five folders containing the material being relied upon in relation to the application were tendered and marked as Exhibit 1. Exhibit 1, therefore, includes some documents which contain confidential information. It is not necessary to refer to any of the confidential information in these reasons.

Background

[13]
It is not in dispute that the applicants are joint venturers who sell coal from various mines in Queensland, namely Newlands, Oaky Creek, Collinsville and Rolleston mines (Mines).
[14]
Rolleston Coal Holdings Pty Limited, the first applicant:
1. (a)
  was the manager and operator of the Mines on behalf of the joint venture participants.
2. (b)
  was a company within the Glencore group of companies.
[15]
As the first applicant took a lead role in respect of the issues relevant to these proceedings, in various documents the applicants are collectively referred to as “Glencore”.
[16]
The seven related proceedings were commenced by the applicants by originating application in relation to decisions by the respondent relating to the applicants’ liability to pay royalties.
[17]
Relevantly, between 1 April 2012 and 31 December 2015, the applicants lodged royalty returns and paid royalties to the State of Queensland based on the value of the coal sold from the Mines.
[18]
The relevant decisions which are the subject of these proceedings are as follows:
1. (a)
  GVRDs by the Minister on 26 November 2019 which determined the value of the coal sold by the applicants for each of the Mines pursuant to:
  1. Section 43F of the Mineral Resources Regulation 2003 (Qld); and
  2. Section 63 of the Mineral Resources Regulation 2013 (Qld).
2. (b)
  Notices of Reassessment under s 331D of the Mineral Resources Act 1989 (Qld) requiring the applicants to pay additional royalties based on the GVRDs. Notices of Reassessment were issued on:
  1. 26 November 2019 in respect of Newlands, Collinsville, Rolleston and Oaky Creek mines for the period from 1 April 2012 to 31 March 2015; and
  2. 28 August 2020 in respect of:
  1. the Newlands and Collinsville mines for the period from 1 April 2015 to 30 September 2015; and
  2. the Oaky Creek mine for the period 1 April 2015 to 31 December 2015.
[19]
The respondent’s power to reassess royalties was contained in s 331B(1) of the Mineral Resources Act 1989 (Qld)^[9] which relevantly states:

“The Minister may make a reassessment of a royalty-related amount payable by a person for a period if the Minister is reasonably satisfied the original assessment or an earlier reassessment made for the period was not or is no longer correct.”

[20]
The proceedings commenced on 19 December 2019 seek judicial review and declaratory relief in relation to the decisions made on 26 November 2019.
[21]
Proceeding BS 14131/19 in respect of Newlands mine, BS 14133/19 in respect of the Collinsville mine, and BS 14137/19 in relation to the Oaky Creek mine are said to “raise 13 substantially identical grounds for the relief sought”.
[22]
Proceeding BS 14135/19 in respect of the Rolleston mine raises four grounds for relief which are identical to Grounds One to Four in the proceedings BS 14131/19, BS 14133/19 and BS 14137/19.
[23]
Further proceedings seeking judicial review and declaratory orders were commenced on 25 September 2020 in relation to the reassessment decisions made on 28 August 2021.
[24]
Proceedings BS 10372/20 in respect of the Oaky Creek mine, BS 10374/20 in relation to the Newlands mine and BS 10375/20 in relation to the Collinsville mine each raise four grounds of review, some of which depend on the outcome of proceedings BS 14131/19, BS 14133/19 and BS 14137/19.

Application to amend

[25]
The proposed amendments to Ground One, the removal of Ground Two and the insertion of Ground 3A relate to the respondent’s decision concerning the GVRDs.
[26]
The proposed Grounds Six and Eight and the removal of Ground 10 relate to the respondent’s reassessment decisions and the consequential interest amount on 26 November 2019 in respect of Newlands, Collinsville and Oaky Creek mines from the identified quarters.
[27]
The proposed amendments to Grounds Six, Eight and 12 also relate to the respondent’s reassessment decisions on 28 August 2020 for the Newlands and Collinsville mines for the identified quarters.
[28]
The proposed amendment to “Ground 7” is the inclusion of a declaration as to the invalidity of the original assessments, as opposed to the reassessments, for all quarters.
[29]
It is also proposed that the ASFIC be consequentially amended.
[30]
All amendments do not apply to all of the originating applications as a result of the differences in the applications. The hearing proceeded on the basis of considering:
1. (a)
  Exhibit HJM-A.42 to the affidavit of H Macpherson filed 5 November 2021, being the proposed Second Further Amended Application for a Statutory order of Review and for Declaratory order in respect of the Newlands mine (Proposed 2FAA).^[10]
2. (b)
  Exhibit HJM-A.49 to the affidavit of H Macpherson filed 5 November 2021, being the applicants’ proposed Further ASFIC.
[31]
These reasons consider the proposed amendments in the Proposed 2FAA which contains all the proposed amendments. Consideration will then need to be given to each of the other six proceedings to reflect what amendments are relevant to each of the originating applications.

Grounds One and 12

[32]
The proposed amendments to Grounds One and 12 deal with the claim for unreasonable delay in the making of the GVRDs. The amendments extend the period of delay relied upon to be the period from 2 August 2013 when the GVRD was requested to 26 November 2019 when the GVRD was made.
[33]
Leave is granted in respect of these amendments.

Grounds Two and 10

[34]
Ground Two relates to the GVRD and Ground 10 relates to the reassessments dated 28 August 2020. The applicants seek to abandon these grounds.
[35]
Leave is granted in respect of these amendments.

Grounds 3A, Six, Seven and Eight

[36]
Grounds 3A, Six, Seven and Eight require consideration of the particular proposed amendments and also the applicable legal principles.

Legal principles

[37]
Rule 377(1) of the Uniform Civil Procedures Rules 1999 (Qld) (UCPR) governs the amendment of originating processes and relevantly, pursuant to r 377(1)(c) leave of the Court is required.
[38]
In relation to the ASFIC prepared pursuant to paragraphs four and five of the orders of Dalton J on 1 June 2020 and as varied by the Registrar on 22 June 2020, the applicants also seek leave to amend the ASFIC.
[39]
The relevant rule in relation to these proposed amendments is r 375 of the UCPR. Under that rule, the Court may allow or direct a party to amend “any other document in a proceeding in the way and on the conditions the court considers appropriate”.
[40]
It is not contentious that the Court’s discretion is broad and is also informed by the circumstances of the case and the proposed amendments.^[11]
[41]
The High Court decision in Aon Risk Services Australia Ltd v Australian National University^[12] is relevant to the exercise of the Court’s discretion in the circumstances of an application for leave to amend.
[42]
Applegarth J in Hartnett v Hynes^[13] helpfully summarises the relevant principles to be applied in the exercise of the Court’s discretion in light of the decision in Aon Risk Services Australia Ltd v Australian National University. Applegarth J stated at [27] as follows:

“The principles discussed by the High Court in Aon inform the exercise of the discretion to grant leave to amend a claim pursuant to UCPR 377 and the discretion to allow or direct a party to amend a claim or a pleading pursuant to UCPR 375. I have already referred to some of these principles in discussing the operation of UCPR 5 in the case of amendments made without leave pursuant to UCPR 378 and the Court’s power to disallow such amendments or make directions concerning further amendment of a claim or a pleading in order to avoid prejudice to the other party and to comply with the rules of civil procedure and their purpose. In the context of the present application and in respect of amendments to the claim or the statement of claim for which leave is required, the following principles assume importance:

An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation.
The discretion is guided by the purpose of the rules of civil procedure, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense.
There is a distinction between amendments which are necessary for the just and expeditious resolution of ‘the real issues in civil proceedings’ and amendments which raise new claims and new issues.
The Court should not be seen to accede to applications made without adequate explanation or justification.
The existence of an explanation for the amendment is relevant to the Court’s discretion, and ‘[i]nvariably the exercise of that discretion will require an explanation to be given where there is a delay in applying for amendment’.
The objective of the Court is to do justice according to law, and, subject to the need to sanction a party for breach of its undertaking to the Court and to the other parties to proceed in an expeditious way, a party is not to be punished for delay in applying for amendment.
Parties should have a proper opportunity to plead their case, but justice does not permit them to raise any arguable case at any point in the proceedings upon payment of costs.
The fact that the amendment will involve the waste of some costs and some degree of delay is not a sufficient reason to refuse leave to amend.
Justice requires consideration of the prejudice caused to other parties, other litigants and the Court if the amendment is allowed. This includes the strain the litigation imposes on litigants and witnesses.
The point the litigation has reached relative to a trial when the application to amend is made is relevant, particularly where, if allowed, the amendment will lead to a trial being adjourned, with adverse consequences on other litigants awaiting trial and the waste of public resources.
Even when an amendment does not lead to the adjournment of a trial or the vacation of fixed trial dates, a party that has had sufficient opportunity to plead their case may be denied leave to amend for the sake of doing justice to the other parties and to achieve the objective of the just and expeditious resolution of the real issues in dispute at a minimum of expense.
The applicant must satisfy the specific requirements of rules, such as UCPR 376(4) where it seeks to introduce a new cause of action after the expiry of a relevant limitation period.” (footnotes omitted)

[43]
Considering these factors here:
1. (a)
  No trial date has been set for the hearing of the seven proceedings.
2. (b)
  The applicants contend that only one new ground is raised, namely Ground 3A and the other proposed amendments are clarifications of existing grounds. In these circumstances, the applicants submit that they do not expect the amendments to cause significant delay or strain on the respondent or witnesses.
3. (c)
  The affidavits to be relied upon at the hearing have been filed or otherwise provided. The proposed amendments may require additional evidence but this is not necessarily so for all of the proposed grounds. In respect of Ground 3A, the applicants contend that no new evidence is required as it is the same as Ground Three but on a different legal basis.
4. (d)
  An affidavit of Mr Macpherson sworn on 27 November 2021 provides an explanation for the delay:
  1. The applicants accept that certain grounds could have been advanced in earlier iterations of the originating applications.
  2. The applicants’ Counsel were instructed to conduct a detailed reconsideration of the contentions made by the applicants and the response by the respondent following service of the respondent’s ASFIC on 24 February 2021 and receipt of the fourth affidavit of Mr Jones dated 29 June 2021. Further analysis was undertaken, including seeking additional documents from the respondent. Consequently, the applications to amend were brought by the applicants.
[44]
The applicants submit that the need for an explanation and the content of the explanation varies from case to case and, in the particular circumstances of this case, the applicants submit:

“It is relevant that the present proceeding is one for judicial review, where the grounds for review must be formulated without perfect knowledge of the process actually undertaken and material relied upon by the decision-maker. The adequacy of any such explanation remains but one consideration to be taken into account, and the absence of a proper explanation is not necessarily fatal to an application for leave to amend. It is a factor which should be given less weight in the present case, in light of the relatively slow pace at which the proceeding has progressed, the fact that no trial date has been requested or set, and that the amendments sought are closely related to existing grounds 3, 6, 7 and 8.” (footnotes omitted)

[45]
The respondent’s submissions pointed to a lack of explanation for the delay and the further affidavit was provided in response to this point by the applicants.
[46]
The respondent also takes issue with the proposed amendments being “arguable” in the sense referred to in the first of the summary points identified by Applegarth J. The respondent submits that proposed Grounds 3A and the first limb in Ground Six do not meet that test.
[47]
The respondent also identifies issues in relation to what is identified as Ground Seven. This is declaratory relief and is not a “ground” of judicial review. The respondent objects to the declaratory relief being expanded to include, in effect, the original assessments being declared invalid as part of a challenge to the reassessments.
[48]
Further, in respect of Ground Eight, as this is said to be founded on Grounds Six and Seven the respondent’s criticisms also apply equally to Ground Eight.
[49]
The respondent contends that the real issue in respect of the application for leave to amend the applications is that it is difficult to determine what the applicants are seeking to agitate by way of these amendments and the prejudice to the respondent is real. The prejudice is that it does not know the case it has to meet and the claims are “a moving feast”.
[50]
In these circumstances, the central issue to be considered in respect of this application is the precise terms of the proposed amendments and whether they are sufficiently clear in their terms.
[51]
Generally, this is not a matter where potential cost and delay of the proceedings themselves are the significant consideration. As has been indicated by the respondent, it is accepted that the respondent will deal with the applicants’ claim at the ultimate hearing but the respondent needs to know with precision at this stage what is being raised by the new grounds.
[52]
The proposed amendments to Grounds 3A, Six, Seven and Eight in the Proposed 2FAA are considered in turn below.

Ground 3A

[53]
The applicants contend that Ground 3A is a variation on the existing Ground Three. Ground Three can be summarised as being based on a lack of evidence for a key finding in the GVRDs. Ground 3A is based on the same issue but raises a different legal basis for the challenge to the decisions. The proposed Ground 3A is based on an implied statutory duty to make the GVRDs on the basis of the material that was before the Minister and that the Minister overlooked or neglected to consider the evidence that was before him.
[54]
The respondent submits that the proposed amendment does not raise a real issue in dispute and that accordingly, the amendment should not be allowed as it is contrary to r 5 of the UCPR. The key objection to this amendment is that it is difficult to determine what the applicants are agitating by this ground.
[55]
What is apparent from the submissions is that the parties have a different reading of the GVRDs in respect of the specific finding which is at the heart of both Grounds three and Ground 3A. This is a matter for the final hearing.
[56]
It also became apparent by the stage of the applicants’ reply oral submissions that the applicants accept that Ground 3A raises jurisdictional error. Based on this concession, some of the concerns about the imprecise language used may fall away.
[57]
Further, the evidence relied upon in relation to Ground Three is the same as the evidence relied upon in relation to Ground 3A.
[58]
Whilst some of the language used in respect of Ground 3A does not mirror the usual language of a judicial review application, there is sufficient detail in the identification of the grounds under s 20 of the Judicial Review Act 1991 (Qld) for there to at least be an arguable case in respect of the proposed Ground 3A.
[59]
Further, some of the concerns raised by the respondent may go to whether the applicants can succeed on Ground 3A at the final hearing. However, it is at least open at this stage that the issue raised under the proposed Ground 3A is arguable and there is not a sufficient reason to refuse leave.
[60]
Leave is granted in respect of the proposed amendment to insert Ground 3A.

Grounds Six, Seven and Eight

[61]
It is convenient to deal with Grounds Six, Seven and Eight together.
[62]
The applicant contends that the proposed amendments to Grounds Six, Seven and Eight enlarge those grounds by relying on alternate interpretations of the statutory power to make a reassessment pursuant to s 331B of the Mineral Resources Act 1989 (Qld). That section refers to “the original assessment or an earlier reassessment”.
[63]
The applicants’ reply submissions acknowledge that the proposed amendment in Ground Six seeks to insert as the primary position, the argument that the existence of the original assessment was a pre-condition to the valid exercise of the power under s 331B of the Mineral Resources Act 1989 (Qld).
[64]
The second part of the Ground Six amendment is to clarify the reasoning with respect to the existing Ground Six that the Minister’s state of satisfaction was a pre-condition to the valid exercise of the power.
[65]
The insertion of the new “primary position” in relation to the existence of the original assessment will cause time, cost, and prejudice to be incurred.
[66]
Further submissions by the applicants at the hearing confirmed that the first limb of Ground Six squarely puts in issue the actual self-assessment process applied in respect of the obligation to pay royalties and raises the prospect that, in fact, no original assessments were made as a result of that process.
[67]
The respondent in oral submissions raised that the respondent’s primary objection in relation to the first limb of Ground Six was that it fundamentally sought to change the focus of the proceedings to challenge the underlying original assessments. It was submitted that if this is the applicants’ case then it needs to be clearly articulated so that the respondent knows the case that it has to meet.
[68]
The respondent also makes submissions as to the language used in Ground Six which does not directly reflect the language that one would anticipate be used in relation to a ground raising an issue as to a jurisdictional fact.
[69]
The issue about the validity of the original assessments arises in the factual circumstances dealt with in the affidavit material filed or delivered in accordance with the directions. This evidence goes to the self-assessment process and the “checking” exercise that was undertaken as described in the affidavit of Mr Jones.
[70]
There is likely to be substantial legal argument about the proper construction of, and the applicability of, s 844 of the Mineral Resources Act 1989 (Qld). These issues will need to be determined at the final hearing. This is not the appropriate time to deal with that issue.
[71]
The respondent points to actual prejudice in that they do not know the basis it is said that the jurisdictional fact issue arises in the first limb of Ground Six. Even considering the matters set out in the ASFIC at [158], the respondent submits that the uncertainty remains.
[72]
The respondent submits that if the applicants’ case is really that the process of self-assessment did not comply with the requirements of the statute and the regulations, in that the process was not authorised by the statute and the regulations, then that position needs to be clearly articulated. This is particularly so in the circumstances where the possible consequences of that case have serious ramifications for the State of Queensland.
[73]
In respect of the second limb of Ground Six, the applicant contends that this is a further clarification of the ground that is already included. This limb focuses on the Minister’s state of satisfaction as a jurisdictional fact.
[74]
The respondent’s main objection in relation to this ground appears to relate to the state of satisfaction being formed on the material that was before the Minister and not on other material.
[75]
Based on the submissions in respect of this issue, it appears that the second limb of Ground Six can be dealt with on the material which is already in evidence and to the extent that it has now been confirmed that it raises jurisdictional fact or a pre-condition to the exercise of the power, this can be dealt with at the final hearing.
[76]
What is referred to as Ground Seven deals with declaratory relief and the applicant contends that the amendment enlarges the period to extend to all quarters rather than just the quarters between 1 July 2014 and 31 March 2015. It is submitted that this amendment clarifies that it is alleged that the assessments were not made by a properly authorised person.
[77]
The construction of s 844 of the Mineral Resources Act 1989 (Qld) will also be central to this ground.
[78]
It appears, based on the submissions in respect of the first limb of Ground Six and also Ground Seven, that the operation of s 333Q of the Mineral Resources Act 1989 (Qld)^[14] is a key consideration.
[79]
The applicants’ reply submissions state that:

“[T]he making of an assessment of royalty concerning the Applicants’ coal involved the exercise of a discretion as to what value to attribute to the coal, in order to arrive at the amount payable by way of royalty. That attribution of a value to the coal was a decision that involved the exercise of the Minister’s discretion under ss. 62 and 63 of the 2013 Regulations.”

[80]
This raises an issue that goes to the foundation of the basis of the obligation to pay royalties.
[81]
The respondent opposes the extension to the later periods and submits that this amendment, in effect, introduces a totally new ground in that it challenges assessments which were not previously challenged. The expansion of the application in relation to assessments prior to 1 July 2014 is in a different category to the later years.
[82]
The declaratory relief sought pursuant to Ground Seven is not a ground of judicial review under the Judicial Review Act 1991 (Qld). However, it introduces the jurisdictional fact component now raised in the earlier grounds. It is seeking a declaration of invalidity of the original assessments giving rise to the obligation to pay royalties. This has wider implications than the relief sought in paragraph 5A of the relief stated in the Proposed 2FAA.
[83]
That is, the declaration of invalidity sought potentially has wider consequences than the reassessments and penalty amounts.
[84]
The relief claimed in paragraph 3A of the 2FAA is for a refund of payments pursuant to the royalty reassessment notices dated 26 November 2019. However, a potential consequence of a finding of invalidity of the original assessments may be that the royalty payments, including those made under the self-assessment process, may be affected.
[85]
During the course of oral arguments, this issue was further explored with Counsel for the applicants who indicated that the challenge to the original assessments was for the purposes of s 331B of the Mineral Resources Act 1989 (Qld), that is the pre-condition to making the reassessment did not exist.
[86]
The applicants appear to seek to quarantine the challenge of the original assessments to just that of the pre-condition to making the reassessment. However, it may not be possible to do so.
[87]
Ground Eight adopts similar wording to Ground Six but in the alternative and only on the basis that Ground Seven is successful. The status of the original assessments is also relevant to this ground.
[88]
The respondent’s objections to Grounds Six and Seven also apply in respect of Ground Eight.
[89]
Leave is granted in respect of the amendments in the second limb of Ground Six. Otherwise, leave in respect of Grounds Seven and Eight and the first limb of Ground Six is refused.
[90]
The issue of the challenge to the original assessments is central to the consideration of these grounds. If the applicants are challenging the validity of the whole self- assessment process by raising the challenge through the reassessment power, this needs to be made clearer than what is in the current proposed grounds.
[91]
The respondent needs to clearly know the challenge that is being made. The language used and the inter-relationship between the Proposed 2FAA and the proposed further ASFIC adds to the lack of certainty as to the nature and scope of the grounds.

Application for disclosure

[92]
In judicial review proceedings under the Judicial Review Act 1991 (Qld) the provisions in UCPR Chapter 7 do not apply and disclosure is not as of right.^[15]
[93]
Pursuant to r 573(1) of the UCPR, the Court has a discretion to order disclosure. This includes disclosure in judicial review proceedings.^[16]
[94]
The parties refer to the decision of Waratah Coal Pty Ltd v Nicholls & Anor^[17] in which Applegarth J stated at [133]:

“Rule 209(1)(c) of the Uniform Civil Procedure Rules 1999 (Qld) contemplates that the Court may direct that disclosure by parties in accordance with Part 1 of Chapter 7 take place in a proceeding started by application. There is no entitlement to disclosure in an application of the present kind. But specific disclosure will be ordered in an appropriate case if to do so is in the interests of justice and if it facilitates the just and expeditious resolution of the real issues in the proceedings at a minimum of expense. If a case is made out for disclosure, then a suitably-tailored order usually should be made, rather than simply expect disclosure to be made in accordance with Part 1 of Chapter 7. One reason is that in a proceeding where there are no pleadings there may be scope for unnecessary disputes and misunderstandings about whether a document is ‘directly relevant to a matter in issue in the proceeding.’^[18] Another is that in any case in which disclosure is ordered, its scope should be defined and not be excessively wide.^[19]”

[95]
The authorities indicate that circumstances which may favour the exercise of the discretion in judicial review applications include where disclosure is in the interests of justice, where disclosure facilitates the just and expeditious resolution of the real issues in the proceedings at a minimum expense, where it is likely to prove the applicants’ case and where documents sought are relevant to an issue in the proceeding or are relevant to the basis of a decision.
[96]
The applicant submits that in the current circumstances, an order for disclosure can be made particularly where the grounds on which the disclosure is sought are stated with “particularity and specificity so as to not constitute a fishing expedition” and the terms of the order are “sufficiently tailored” and not “excessively wide” in scope.
[97]
The disclosure sought in paragraph one of the interlocutory application are documents relating to the original assessments. As identified above, the documents identified in each of subparagraphs (i), (ii) and (iv) of 1(a), (b) and (c) of the interlocutory application will be disclosed by the respondent by 17 December 2021.
[98]
In respect of subparagraph (iii) of 1(a), (b) and (c) of the interlocutory application, the respondent objects to disclosing documents in that category. Subparagraph (iii) states:

“[D]ocuments containing any calculations by a person within the Office of State Revenue relating to any such assessment or reassessment, and any underlying source documents prepared, used or relied on to make the assessment or reassessment.”

[99]
The application in respect of (iii) was not pressed at the hearing but an indication was given that once the documents have been reviewed, the applicants would then make a decision as to whether they “wish to press for any further documents”.
[100]
In respect of 1(c)(v), which relates to the period January 2013 to the end of 2015, the respondent objects to disclosure of that category of documents and the applicants press for an order requiring disclosure of that category.
[101]
This category seeks disclosure of “any documents recording the communication of a Liability Notice or an Assessment Notice to the applicants”.
[102]
The respondent’s position is that in this period, the relevant computer system was what is referred to as OSR Connect. Any liability notices or assessment notices were not “communicated” by way of email. Rather, as explained in the fourth affidavit of Mr Jones, the Liability Notice or Assessment Notice was obtained through what could be generically described as a “portal”. That is, that the computer database was accessed by a login and a relevant party could access the relevant document that way, rather than it being “communicated” in a more traditional form such as email or letter.
[103]
It is in these circumstances that the respondent informed the Court that in respect of the category in paragraph 1(c)(v) there were no “communications” and therefore there are no documents to be produced in relation to this category.
[104]
Additionally, it was indicated to the Court that the original form of a Liability Notice or an Assessment Notice was only available for a short period of time in that form on the “portal”. However, a document containing the same information was available from the computer system and copies of these relevant documents have already been provided to the applicants. It is not possible to provide a copy of the documents in the original form that they appeared on the “portal”, but the same information is contained in this alternative document.
[105]
Given the evidence in the affidavit of Mr Jones and the information provided by Counsel at the hearing, there is no utility in ordering that disclosure in accordance with paragraph 1(c)(v) be provided. In these circumstances, the application to the extent that the applicants seek disclosure of the documents in paragraph 1(c)(v) of the interlocutory application is dismissed.
[106]
In respect of the category of documents in paragraph 2A, these documents relate to the progress of the GVRDs and the applicants’ claim in respect of delay. The category seeks disclosure of any documents or other records which record or evidence the progress of the GVRDs and what occurred in the making of the GRVDs in a period of over six years.
[107]
The respondent objects to the disclosure sought on the basis that it is “excessively wide, onerous and prejudicial.”
[108]
The applicants refer to the sixth affidavit of Mr Jones at paragraphs eight to 10 where the “Investigation Nexus file” is identified and also emails of staff members. Disclosure is, in effect, sought from these sources of documents held by the respondent.
[109]
The application for disclosure is further complicated by:
1. (a)
  The fact that the applicants recognise that they do not need disclosure of communications between the applicants and the respondent or documents that the applicants provided to the Office of State Revenue.
2. (b)
  The applicants are looking for proof of the progress or the lack thereof in making the decision and it is the gaps between various documents or things occurring which may be important.
[110]
The position of the applicants is that Grounds One and Two put in issue whether the Minister made the GRVDs within a reasonable time and these grounds contend that there was unreasonable delay by the Minister in making the relevant decision.
[111]
The applicants point to documents by the respondent recognising that there had been “unreasonable delay outside the control of Glencore” in considering the interest to be imposed. This is set out, for example, in the Exit Investigation letter issued by the Minister on 26 November 2019.
[112]
To be able to prove the delay was unreasonable the applicants seek all documents recording the progress of the GRVDs and any delay periods over the period of six years and four months. It is submitted that as these documents are solely within the possession and control of the respondent it would be unfair if they were not ordered to be provided.
[113]
The respondent’s position in respect of this category of documents is that the category of documents sought is not tailored to the periods of delay and is excessively wide such that the request can only be classified as a “fishing expedition”. The respondent points to documents which have already been provided to the applicants including by:
1. (a)
  Four tranches of Right to Information disclosure.
2. (b)
  The affidavits filed and delivered in respect of the proceeding by the respondent. In particular, the first Mr Jones’ affidavit exhibits all of the material relied upon in the decision-maker reaching the GVRDs, including exhibits GTJ12 – 1 to 435.
3. (c)
  Other documents provided by the respondent.
[114]
The respondent points to these documents as containing information which is relevant to and which explains what was happening in relation to the assessment.
[115]
The applicants rely on the affidavit of Mr Macpherson sworn on 29 November 2021 which deposes to there being nothing of use in the documents that have been provided to date.
[116]
It is difficult to fully understand this conclusion as it is likely that from the way that the grounds in respect of delay are articulated and the statements made by the respondent conceding delay that the existing documentation could be analysed to identify specific targeted periods or targeted events so as to ascertain relevant progress. There is no evidence that analysis has been undertaken to identify any specific events or periods where evidence is sought in respect of delay.
[117]
Rather, disclosure of all documents in relation to the progress of the GVRDs is sought (except those documents which the applicant already has because it was correspondence between the applicants and the respondent or alternatively, they have copies as part of these proceedings). This is potentially wider than documents which would be caught by the directly relevant test.
[118]
The respondent also raises the issue as to whether the documents relevant to unreasonable delay in any event are only those which were before the relevant decision-maker. These are exhibited to the first affidavit of Mr Jones.
[119]
To the extent that the applicants seek “any documents” in relation to the progress or what occurred in the making of the GVRDs, this may include documents that were not before relied upon by the relevant decision-maker or are not “steps” undertaken in the process of the making of the ultimate decision.
[120]
The applicants seek all the evidence that bears upon whether there was an unreasonable delay in the making of the GVRDs. However, the reality is that to make out the unreasonable delay, it may be the lack of the existence of documents which is relevant.
[121]
It was raised in submissions, both written and oral, that it may be possible for keyword searches to be deployed across the “Investigation Nexus file” and emails to identify relevant documents. No proposal has been put forward by the applicants as to an acceptable approach. In any event, as submitted by the respondent, “delay” in itself cannot be searched. Further, keyword searches also will not detect the lack of documents in a period.
[122]
Ultimately, the issue of whether the delay was unreasonable most likely turns upon the decisions, the reasons of the decision-maker and the material relied upon by the decision-maker (and when that material came into existence or became available). That has previously been provided to the applicants.
[123]
The two documents that were offered by the respondent that may be of assistance were the “Relevant Correspondence File Index” and also a printout of the version history of the draft GVRDs. This is in addition to the six draft GVRDs that have already been provided to the applicants. This was offered by the respondent on the basis that these documents may be of some assistance in the analysis of all the existing documents which have been provided to the applicants to understand the chronology of the progress of the GVRDs.
[124]
In the circumstances, the documents sought by paragraph 2A are too broad and can only be described as a fishing exercise. There has been no attempt to identify gaps in the documents or material that have already been provided and to seek specific targeted categories of documents or documents in relation to a specific period.
[125]
The category seeks documents over a period of over six years and includes in effect all documents which have some relevance to the progress of the GVRDs. As indicated previously, this is likely wider than directly relevant documents and may, in effect, be the same as the previous “train of inquiry” test. The relevance to the progress of the decision or what occurred is so broad that it could include documents which are only of limited relevance to the actual decisions made.
[126]
It is also relevant that it is the decision of the relevant Minister which is the relevant decision. While there is no doubt that staff of the Office of State Revenue had involvement in the tasks undertaken, it is ultimately the documents which the decision-maker had regard to and the actual draft decision (Findings Paper) and final decision (Exit Letter) that are relevant.
[127]
In the circumstances, I do not consider that there is a proper basis for disclosure of the documents in the category of documents sought in paragraph 2A of the interlocutory application. The terms of the category of documents sought is not “suitably tailored” and is “excessively wide” in scope.
[128]
Accordingly, paragraph 2A of the interlocutory application is refused.

Orders

[129]
In light of these reasons, the parties are to prepare orders reflecting the particular amendments allowed in respect of each proceeding and the outcome in respect of the applications for disclosure.
[130]
I will hear further from the parties in respect of costs, including reserved costs.

Footnotes

[1] Only three applicants. The first and second applicants are the same, but the third applicant is a different company to the fourth applicant in BS 14131/19.

[2] The fourth applicant is a different company.

[3] The Treasurer is the respondent and the fourth applicant is the same as BS 14137/19.

[4] The Treasurer is the respondent.

[5] The Treasurer is the respondent.

[6] These exhibits are the proposed particular originating applications for statutory order of review in each of the seven proceedings. There are some different parties in each to reflect the relevant contractual entities and the grounds raised follow the same format but not all grounds or amended grounds are raised in all proceedings.

[7] Amended from 2010 to 2012 at the hearing.

[8] For ease of reference the respondent is referred to in the singular but the respondent is different in three of the originating applications. Nothing turns on the particular respondent in respect of the current application.

[9] The section was in force at the relevant time.

[10] The Proposed 2FAA contains all the proposed amendments to be considered.

[11] Combined Property Holdings Pty Ltd v Galea & Ors [2020] QSC 338 at [86].

[12] (2009) 239 CLR 175.

[13] [2009] QSC 225 at [27].

[14] The section was in force at the relevant time.

[15] BHP Coal Pty Ltd & Ors v Treasurer & Minister for Trade & Investment; BHP Coal Pty Ltd & Ors v Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sports [2018] QSC 66 at [36].

[16] BHP Coal Pty Ltd & Ors v Treasurer and Minister for Trade and Investment; BHP Coal Pty Ltd & Ors v Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sports [2017] QSC 326 at [49].

[17] [2013] QSC 68.

[18] Uniform Civil Procedure Rules 1999 (Qld), r 211(1)(c).

[19] Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183.

Editorial Notes

Published Case Name:
Rolleston Coal Holdings Pty Limited & Ors v The Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships
Shortened Case Name:
Rolleston Coal Holdings Pty Limited v The Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships
MNC:
[2021] QSC 328
Court:
QSC
Judge(s):
Williams J
Date:
14 Dec 2021

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Aon Risk Services Australia Limited v Australian National University	View on:JADE(2009) 239 CLR 175	2 citations Jump To Cite 1 - (2009) 239 CLR 175 Cite 2 - (2009) 239 CLR 175
Aon Risk Services Australia Limited v Australian National University	View on:JADE(2009) HCA 27	1 citation Jump To Cite 1 - (2009) HCA 27
BHP Coal Pty Ltd v Treasurer and Minister for Trade and Investment	[2017] QSC 326	1 citation Jump To Cite 1 - [2017] QSC 326
BHP Coal Pty Ltd v Treasurer and Minister for Trade and Investment	[2018] QSC 66	1 citation Jump To Cite 1 - [2018] QSC 66
Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd	[2011] QSC 183	1 citation Jump To Cite 1 - [2011] QSC 183
Combined Property Holdings Pty Ltd v Galea	[2020] QSC 338	2 citations Jump To Cite 1 - [2020] QSC 338 Cite 2 - [2020] QSC 338
Hartnett v Hynes	[2009] QSC 225	2 citations Jump To Cite 1 - [2009] QSC 225 Cite 2 - [2009] QSC 225
Waratah Coal Pty Ltd v Nicholls	[2013] QSC 68	2 citations Jump To Cite 1 - [2013] QSC 68 Cite 2 - [2013] QSC 68

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Metarock Group Ltd v Broadfoot	[2024] QSC 159	2 citations

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Rolleston Coal Holdings Pty Limited v The Deputy Premier, Treasurer and Minister for Aboriginal and Torres Strait Islander Partnerships[2021] QSC 328