BHP Billiton Mitsui Coal Pty Ltd v Baulch & Anor and Chief Executive, Department of Environment and Heritage Protection

[2014] QLC 43

LAND COURT OF QUEENSLAND

CITATION:

BHP Billiton Mitsui Coal Pty Ltd v Baulch & Anor and Chief Executive, Department of Environment and Heritage Protection [2014] QLC 43

PARTIES:

BHP Billiton Mitsui Coal Pty Ltd
(applicant)

v

Raymond John Baulch and Marjorie Beryl Baulch
(objectors)

and

Chief Executive, Department of Environment and Heritage Protection
(statutory party)

FILE NOS:

MRA088-14
EPA089-14
MRA090-14
EPA091-14

DIVISION:

General Division

PROCEEDING:

General Application

DELIVERED ON:

9 December 2014

DELIVERED AT:

Brisbane

HEARD ON:

23 September 2014

HEARD AT:

Brisbane

MEMBER:

WA Isdale

ORDERS:

1. It is declared that:

(i)     Rule 13 of the Land Court Rules 2000 applies to the mining lease matters.

(ii) Each party in the mining lease matters has a duty of disclosure under Rule 211 of the Uniform Civil Procedure Rules 1999, requiring each party to disclose each document, in the possession or under the control of that party, which is directly relevant to a matter in issue in the mining lease matters.

2.    The applicant pay the costs of the objectors of, and incidental to, this general application, on the standard basis.

CATCHWORDS:

Mineral Resources Act 1989, ss 265(2), 268(9), 363
Environmental Protection Act 1994, s 185
Acts Interpretation Act 1954, s 36
Land Court Rules 2000, Rules 3, 7, 8-12, 13
Uniform Civil Procedure Rules 1999, R 211
Land Court Act 2000, ss 7, 21, 21(2), 22, 33, 34, 64, 77(B),

Disclosure, duty of disclosure, referral of application, referral of objection, recommendation, administrative act, act judicially

Re Calder SM; Ex parte Gardener (1999) 20 WAR 525

Dunn v Burtenshaw & Anor (2010) 31 QLCR 156
Legend International Holdings v Taylor Aly Awaditijia & Anor (No. 3) [2014] QLC 28
Re Minister for Mines, Fuel and Energy; Ex parte Terythall (1992) 7 WAR 375
Ostroco v Department of Transport and Main Roads (No. 3) [2014] QLAC 7
Slater & Ors v Appleton & Anor [2011] QLC 31
Re Warden French; Ex parte Serpentine-Jarrahdale Ratepayers and Residents Association (1994) 11 WAR 315

APPEARANCES:

A Skoien and M Batty instructed by SB Wright & Wright and Condie for the objectors
A Pomerenke QC instructed by Ashurst for the applicant
P Brown for the statutory party

Background

1. The objectors have exercised their right to oppose the applicant’s endeavour to obtain additional surface area under the Mineral Resources Act 1989 (MRA) and for consequential amendment of an environmental authority under the Environmental Protection Act 1994 (EPA). This relates to a mining lease ML 4750 for the South Walker Creek Mine which the applicant operates. It is located about 40 km west of Nebo in the northern part of the Bowen Basin.

2. The statutory party, in the person of the Principal Mining Registrar, Assessment, has, in the usual course, referred the application and objections to the Land Court for hearing. The referral was filed on 24 March 2014. The objectors have elected to attend the hearing, call evidence, cross-examine witnesses and to make submissions at the end of the hearing.

3. The orders made by the Court were:

   ·      on 14 April 2014, for the applicant to request and the respondent to give particulars of the grounds of their objections.

   ·      on 3 June 2014, that the parties attend, participate in and act reasonably and genuinely in a mediation.

   ·      on 21 August 2014, for further particulars to be provided by the objectors and for the parties to produce lists of proposed witnesses.

4. The applicant has made known to the objectors that it does not accept that there is a requirement for disclosure in the present matter. In order to attempt to obtain disclosure, the objectors have brought this general application.

The general application

1. On 10 September 2014 the objectors’ solicitors filed a general application which is based on the following:

   “1.  The Applicant has applied (the ‘Mining Lease Applications’):

   (a)for a grant of rights for additional surface area under the Mineral Resources Act 1989 for existing mining lease ML4750; and

   (b)amendment of the Environmental Authority under the Environmental Protection Act 1994 for the additional surface area for mining lease ML4750.

   2.  The Objectors have lodged objections (the “Objections’) in respect of the Mining Lease Applications.

   3. The Objections have been referred to the Land Court for hearing and determination under Part 1 of Chapter 6 of the Mineral Resources Act 1989 (the ‘Mining Lease Matters’).

   4. The Land Court has made certain orders in respect of the conduct of the Mining Lease Matters.

   5.  The Objectors maintain that:

   (a)Rule 13 of the Land Court Rules 2000 applies to the Mining Lease Matters;

   (b)the parties to the Mining Lease Matters have a duty of disclosure under Rule 211 of the Uniform Civil Procedure Rules 1999 to disclose each document in their possession or control directly relevant to a matter in issue in the proceeding; and

   (c)the Land Court ought to make orders requiring the parties to disclose each document in their possession or under their control directly relevant to a matter in issue in the Mining Lease Matters.

   6.  The Applicant disputes the Objectors’ contentions about disclosure identified in paragraph 5 above.

   7.  In the circumstances set out in paragraphs 1 to 6 above, there is a dispute between the Applicant and the Objectors concerning:

   (a)the existence of a general duty of disclosure in the Mining Lease Matters; and

   (b)the entitlement of the Objectors to orders for disclosure of documents by the Applicant in the Mining Lease Matters.”

2. The orders and other relief sought by the objectors are:

   “(a) declarations that:

   (i)   Rule 13 of the Land Court Rules 2000 applies to the Mining Lease Matters;

   (ii) each party in the Mining Lease Matters has a duty of disclosure under Rule 211 of the Uniform Civil Procedure Rules 1999, requiring each party to disclose each document, in the possession or under the control of that party, which is directly relevant to a matter in issue in the Mining Lease Matters; and

   (iii) the Applicant has a duty to disclose to the Objectors each document, in its possession or under its control, which is directly relevant to a matter in issue in the Mining Lease Matters;

   (b)orders requiring each party to make disclosure of each document, in the party’s possession or under that party’s control, which is directly relevant to a matter in issue in the Mining Lease Matters;

   (c)an order that the Applicant pay the Objectors’ costs of, and incidental to, this Application; and

   (d)such further orders as the Court deems fit.”

3. At the hearing of the application the objectors did not press for the orders referred to in (b) at present, preferring to keep the focus on the primary point rather than a consequence. If declaration (ii) is granted there would be no need for (iii).

4. The grounds upon which the declarations were sought were:

   “1.The Applicant has applied (the ‘Mining Lease Application’):

   (a)for a grant of rights for additional surface area under the Mineral Resources Act 1989 for existing mining lease ML4750; and

   (b)amendment of the Environmental Authority under the Environmental Protection Act 1994 for the additional surface area for mining lease ML4750.

   2.   The Objectors have lodged objections (the ‘Objections’) in respect of the Mining Lease Applications.

   3. The Objections have been referred to the Land Court for hearing and determination under Part 1 of Chapter 6 of the Mineral Resources Act 1989 (the ‘Mining Lease Matters’).

   4. The Land Court has made certain orders in respect of the conduct of the Mining Lease Matters.

   5.   The Objectors maintain that:

   (a)Rule 13 of the Land Court Rules 2000 applies to the Mining Lease Matters;

   (b)the parties to the Mining Lease Matters have a duty of disclosure under Rule 211 of the Uniform Civil Procedure Rules 1999 to disclose each document in their possession or control directly relevant to a matter in issue in the proceeding; and

   (c)the Land Court ought to make orders requiring the parties to disclose when (sic) each document in their possession or under their control directly relevant to a matter in issue in the Mining Lease Matters.

   6.   The Applicant disputes the Objectors’ contentions about disclosure identified in paragraph 5 above.

   7.   In the circumstances set out in paragraphs 1 to 6 above, there is a dispute between the Applicant and the Objectors concerning:

   (a)the existence of a general duty of disclosure in the Mining Lease Matters; and

   (b)the entitlement of the Objectors to orders for disclosure of documents by the Applicant in the Mining Lease Matters.

   8. Pursuant to section 5 of the Land Court Act 2000, the Land Court has jurisdiction given to it under the Land Court Act 2000 or another Act.

   9. The Land Court is given jurisdiction to deal with the Mining Lease Matters under the Mineral Resources Act 1989.

   10. The jurisdiction of the Land Court in respect of the Mining Lease Matters is exclusive.

   11. Pursuant to section 33 of the Land Court Act 2000, the Land Court may make a declaration about:

   (a)a matter done, to be done, or that should have been done under the Land Court Act 2000 or another Act giving jurisdiction to the Land Court; and

   (b)the construction of any legislation for the purpose of proceedings in which the Court has exclusive jurisdiction.

   12. Pursuant to section 21 of the Land Court Act 2000:

   (a)  the Governor in Council, with the concurrence of the Chief Justice and the President of the Land Court may make rules about anything:

   (i)   required or permitted to be described by the Rules; or

   (ii)  necessary or convenient to be prescribed for the Land Court;

   (iii) the procedures of the Land Court or the Registry; and

   (b)  the procedures of the Land Court are governed by the Rules.

   13.Pursuant to Rule 19 of the Land Court Rules 2000 or section 22 of the Land Court Act 2000, the Land Court may make directions about the matter before the Land Court.

   14.Rule 13 of the Land Court Rules 2000 provides that Chapter 7 of the Uniform Civil Procedure Rules 1999 applies, with necessary changes, to disclosure, in relation to a proceeding in the Land Court.

   15.The Mining Lease Matters are each a ‘proceeding’ in the Land Court for the purposes of the Land Court Rules 2000.

   16.Rule 211 of the Uniform Civil Procedure Rules imposes a general duty of disclosure on parties to a proceeding.

   17.In the circumstances set out in paragraphs 1 to 16 above:

   (a)  Rule 13 of the Land Court Rules 2000 applies to the Mining Lease Matters;

   (b) each party in the Mining Lease Matters has a duty of disclosure under Rule 211 of the Uniform Civil Procedure Rules 1999, requiring each party to disclose each document, in the possession or under the control of that party, which is directly relevant to a matter in issue in the Mining Lease Matters;

   (c) the Applicant has a duty to disclose to the Objectors each document, in its possession or under its control, which is directly relevant to a matter in issue in the Mining Lease Matters; and

   (d) the Court should make orders requiring each party to make disclosure of each document, in that party’s possession or under that party’s control, which is directly relevant to a matter in issue in the Mining Lease Matters.”

1. The Court has not been asked to determine the scope of disclosure in the present application. The affidavit of Mr A D Busch, the objectors’ solicitor, sets out the correspondence between the parties and the issues in dispute. It states that general disclosure is sought from the applicant and the statutory party. At the hearing it was made clear by counsel for the statutory party that it would abide by the orders of the Court.

The objectors’ submissions

1. The objectors submit that all of the parties in the matter before the Court have a general duty of disclosure by operation of Rule 13 of the Land Court Rules 2000 (Rules) and Rule 211 of the Uniform Civil Procedure Rules 1999 (UCPR).

2. The Rules are made under the Land Court Act 2000 (Act). Section 21 of the Act provides that:

   Rules of Land Court

   (1)The Governor in Council, with the concurrence of the Chief Justice and the president, may make rules about anything—

   (a)  required or permitted to be prescribed by the rules; or

   (b)  necessary or convenient to be prescribed for the Land Court.

   (2)Without limiting subsection (1), the rules may provide for the procedures of the court or the registry.

   (3)The procedures of the court are governed by the rules.

   (4)The rules may be uniform rules that apply to other courts.

   (5)The rules are subordinate legislation.

1. It is noted that s 7 of the Act provides that:

   Land Court to be guided by equity and good conscience

   In the exercise of its jurisdiction, the Land Court—

   (a)  is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and

   (b)  must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.

1. In addition, s 22 of the Act states:

   Directions

   (1)To the extent a matter about Land Court procedure is not provided for by the rules, the matter may be dealt with by a direction under subsection (2) or (3).

   (2)The president may issue directions of general application about the procedure of the court.

   (3)A member may issue directions about a particular case before the court when constituted by the member.

1. In view of s 7 and s 22, the applicant’s success in the present application would not be certain to finally resolve the issue of disclosure.

2. Rule 3 provides that the Rules being considered apply “to proceedings in the Land Court” and Rule 7 that:

   “A proceeding is started by filing an originating process in the registry.”

3. Rule 5 says that the Dictionary in Schedule 1 of the Rules provides definitions. The Dictionary says:

   originating process means any of the following that, under an Act conferring jurisdiction on the court, may start a proceeding in the court—

   (a)an originating application;

   (b)a notice of appeal;

   (c)another document.

4. Section 265(2) of the MRA says that the chief executive must “refer” the application for the mining lease and all properly made objections to it to the Land Court for hearing. Section 185 of the EPA also uses the word “refer”.

5. The conclusion urged on behalf of the objectors is that there have been proceedings started by originating process, namely “another document” so they are proceedings to which the Rules apply.

6. Section 77B of the Act allows the President to approve forms. By Practice Direction 1 of 2013 this occurred and Practice Direction 3 of 2013 provided that Land Court Form 6 was to be used for matters of the sort now under consideration. Practice Direction 2(6) of 2013 states that:

   “A proceeding is sometimes started in the Land Court by way of a ‘referral’ ...”

   It was correctly submitted on behalf of the applicant that this choice of words in the Practice Direction is not able to be used to resolve the present questions.

7. Rule 13 provides that:

   Disclosure

   Chapter 7 of the uniform rules applies, with necessary changes, to disclosure in relation to a proceeding in the court.

Rule 4 shows that the uniform rules are the UCPR.

1. The presently relevant part of Chapter 7 of UCPR is Rule 211, which is in the following form:

   211  (1) A party to a proceeding has a duty to disclose to each other party each document—

   (a)  in the possession or under the control of the first party; and

   (b)  directly relevant to an allegation in issue in the pleadings; and

   (c)  if there are no pleadings—directly relevant to a matter in issue in the proceeding.

1. The objectors submit that these are proceedings where the parties have a duty of disclosure under Rule 13 and Rule 211 of the UCPR. They point out that the interpretation for which they contend is the same as that set out by His Honour Member Smith in Slater & Ors v Appleton & Anor.[1] In that case His Honour gave an ex tempore decision dismissing applications for disclosure of a certain deed.

   [1][2011] QLC 31.

2. There were not any lawyers appearing before His Honour, who explained the legal position to the parties. Rather than rule on what it was, His Honour gave an explanation of the situation. The objectors rightly do not seek to make more of this case than it was.

3. The objectors submit that it would be wrong to construe the Rules to exclude the present case from the operation of the disclosure provisions, there being no good reason for what would be a forced construction not consistent with s 7 of the Act. His Honour referred to s 7 in Slater & Ors v Appleton & Anor.[2]

   [2][2011] QLC 31, [11], [12].

4. The objectors refer to the decision of the Land Appeal Court, decisions of which are binding on this Court, in Dunn v Burtenshaw & Anor.[3] This decision, they submit, is authority for the proposition that the hearing of the reference is not a proceeding for the purposes of s 64 of the Land Court Act which provides that:

   [3](2010) 31 QLCR 156.

Right of appeal to Land Appeal Court

A party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court.

1. This decision, which dealt with substantive appeal rights, is said not to be relevant for present purposes as it did not deal with the application of procedural provisions. The Land Appeal Court noted that the Land Court’s function in making a recommendation to the Minister in the matter is an administrative one.[4] The Land Appeal Court found that the recommendation was not a decision:

   “of the sort contemplated by s 64 of the LCA insofar as it is not a proceeding but rather an administrative step consequent upon a statutorily prescribed enquiry conducted by the learned Land Court Member.”

   [4](2010) 31 QLCR 156, [39], [46], [47].

2. The Land Appeal Court found that no appeal can be had to it from the Land Court’s recommendations.

3. The fact that this Court acts judicially in performing this administrative function[5] is submitted as being consistent with the applicability of disclosure requirements.

   [5](2010) 31 QLCR 156, [40].

4. The objectors submit that the Land Appeal Court’s decision does not deal with the meaning of the word “proceeding” under the Rules, only under s 64. They point to s 36 of the Acts Interpretation Act 1954 where, in Schedule 1, it is provided that:

   “Proceeding means a legal or other action or proceeding”

1. This wide definition is relied upon to include the present matter referred to the Court.

2. It is also submitted that s 21(2) of the Act provides power to make rules about the procedures of the Court. This power does not depend on there being a proceeding. Since Rule 3 applies the Rules to “proceedings in the Land Court”, the objectors submit that a conclusion that Rule 13 does not apply would mean that neither do the rest of the rules.

3. In Legend International Holdings v Taylor Aly Awaditijia & Anor (No. 3)[6] the President made an order for disclosure in proceedings concerning an objection to a draft environmental authority issued under the EPA. The learned President considered that Rule 13 of the Rules brought Rule 211 of the UCPR into operation.[7] The issue before the Court was the relevance of the documents sought to the issues in the objection[8] rather than the existence or otherwise of a duty of disclosure. The learned President’s consideration of the provisions was in that context of relevance.

[6][2014] QLC 28.

[7][2014] QLC 28, [11], [12], [13].

[8][2014] QLC 28, [21].

The applicant’s submissions

1. The applicant submits that Rule 13 has no application as it applies to a “proceeding” which does not properly describe the current substantive matters before the Court. The applicant argues that the decision of the Land Appeal Court in Dunn v Burtenshaw & Anor[9] has authoritatively determined that the present matters are not a proceeding. It is argued that the word should have the same meaning in the Act and the Rules.

   [9](2010) 31 QLCR 156.

1. It is pointed out that the Land Appeal Court contrasted the role of the Land Court in making a recommendation with its substantive jurisdiction under s 363 of the MRA.[10] The recommendation does not in any way determine the applicant’s rights.[11] The function in making a recommendation to the Minister is an administrative one.[12]

   [10](2010) 31 QLCR 156, [24], [25].

   [11](2010) 31 QLCR 156, [27].

   [12](2010) 31 QLCR 156, [39].

2. The applicant submits that Rule 13, which is in Part 2 of the Rules, must be considered in its context. When this is done, it is argued that the present matters are not included in its scope. They were started, it is said, not by filing an originating process in the registry under Rule 7, but by applications made to the chief executive under the MRA and to the administering authority under the EPA. This submission is not persuasive as it does not take into account that Rule 7, when read with Rule 3, refers to starting a proceeding in the Land Court.[13] This does not preclude the matter having had its genesis elsewhere. It is started in the Land Court when it comes to the Land Court.

   [13]Land Court Rules 2000, Rule 3.

3. It is argued that Rules 8 to 12 would have no application to the present matter so it would be logical that neither does Rule 13, there being no reason that it should be the only one in Part 2 of the Rules to apply. This argument is not accepted. The rule may be the only one in Part 2 to apply because, on the facts, it is the only one applicable. No further conclusion is justified.

4. It is submitted that the finding in Dunn v Burtenshaw & Anor[14] is consistent with authority.[15] For present purposes it is sufficient that it is a decision of the Land Appeal Court.

[14](2010) 31 QLCR 156.

[15]Re Minister for Mines, Fuel and Energy; Ex parte Trythall (1992) 7 WAR 375, 385. Re Warden French; Ex parte Serpentine-Jarrahdale Ratepayers and Residents Association (1994) 11 WAR 315, 328-329.

Re Calder SM; Ex parte Gardener (1999) 20 WAR 525, [17], [21].

1. It is submitted that the decision of the learned President in Legend International Holdings Inc v Taylor Aly Awaditijia & Anor (No. 3)[16] was made without the decision in Dunn v Burtenshaw & Anor[17] being drawn to the Court’s attention, cannot be reconciled with it and should not be followed.

   [16][2014] QLC 28.

   [17](2010) 31 QLCR 156.

2. As has already been discussed, the learned President’s decision did not deal with the matter presently being considered. It is accordingly not being relied on by the Court at present. Were the Court to follow the decision of the learned President, the applicant submits that its solicitors have invited the objectors to identify what they are seeking.[18] Only broad categories have been identified[19] and nothing has been shown to be directly relevant so that only a burdensome “fishing expedition” is being made.

   [18]Affidavit of Mr A D Busch filed 10 September 2014, page 55.

   [19]Affidavit of Mr A D Busch filed 10 September 2014, 5(c), (e).

3. As orders for disclosure are not being sought, it will not be necessary to consider this aspect.

4. The applicants seek to have the general application dismissed.

Conclusions

1. The decision in Dunn v Burtenshaw & Anor[20] was that the recommendation was not a decision of the sort contemplated by s 64 of the Act, as it is not a proceeding but an administrative action that the Land Court is performing. The decision relates to the substantive appeal right allowed by the wording of s 64 and the concept of a decision. In the present case what is being considered relates to the process within which the Court, acting judicially, performs an administrative function. Accordingly, the decision of the Land Appeal Court does not direct the conclusion in the present case. As has already been considered, neither do the decisions in Slater & Ors v Appleton & Anor[21] or Legend International Holdings v Taylor Aly Awaditijia & Anor (No. 3).[22] The wording of the Practice Directions which have been considered likewise do not determine the issue or assist in doing so.

   [20](2010) 31 QLCR 156.

   [21][2011] QLC 31.

   [22][2014] QLC 28.

2. The Rules, made under s 21 of the Land Court Act 2000, apply to a proceeding as that is widely defined in Schedule 1 of the Acts Interpretation Act 1954, “a legal or other action or proceeding”.[23] Considering the Rules presently in question, rules for the conduct and procedures of the Court and its Registry[24] with the procedures of the Court governed by the Rules,[25] the proceedings referred to in Rule 3 will be those matters which come before the Court. As has been considered, it is irrelevant that Rules 8 to 12 may not apply in the present case.

   [23]Acts Interpretation Act 1954 s 36, Schedule 1.

   [24]Land Court Act 2000, s 21(2).

   [25]Land Court Act 2000, s 21(3).

3. The requirement of Rule 7, that a proceeding is started by filing an originating process in the Registry, is referable to it being “another document” as that expression appears in the definition of “originating process” in the Dictionary in the Rules. The referral in Form 6 was filed on 24 March 2014 according to the stamp affixed by the Registry.

4. Rule 13 applies Chapter 7 of the UCPR, with necessary changes, to disclosure in relation to a proceeding in the Court. As the present matter is a proceeding within the meaning of Rule 13, the general application must be decided in the objectors’ favour. It is not necessary at present to consider the content of disclosure. Section 33 of the Act allows for the Court to make the declarations sought. There has been no dispute about this.

Costs

1. The objectors have sought an order that the applicant pay their costs of and incidental to the General Application. Section 34 of the Act provides:

   Costs

   (1)Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.

   (2)If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding.

1. In Ostroco v Department of Transport and Main Roads (No 3)[26] the Land Appeal Court said at [8]:

   “As this Court said in Moreton Bay Regional Council v Mekpine Pty Ltd & Anor (No. 2):

   ‘It has been held on many occasions that the discretion to award costs granted by s 34 is unfettered but that the discretion is to be exercised judicially, that is for reasons that may be explained and substantiated. However it has also been recognised by the Land Appeal Court that although the discretion to award costs is unfettered, the rule that costs follow the event may inform the exercise of the discretion granted under s 34(1), 'as there is justice in that approach. It protects those put to unnecessary and substantial expense at the behest of others'.’ [footnotes omitted]”

   [26][2014] QLAC 7.

1. In the present case it was necessary for the general application to be brought as the application of the disclosure requirement was in dispute. The objectors have been completely successful. Costs are not in any sense a punishment but are to indemnity the successful party for the costs which they have necessarily incurred in consequence of the need to bring their case to Court.

2. The objectors are entitled to an order that the applicant pay the objectors’ costs of, and incidental, to this general application, on the standard basis.

Orders

1.     It is declared that:

(i)Rule 13 of the Land Court Rules 2000 applies to the mining lease matters.

(ii)Each party in the mining lease matters has a duty of disclosure under Rule 211 of the Uniform Civil Procedure Rules 1999, requiring each party to disclose each document, in the possession or under the control of that party, which is directly relevant to a matter in issue in the mining lease matters.

2.     The applicant pay the costs of the objectors of, and incidental to, this general application, on the standard basis.

WA ISDALE

MEMBER OF THE LAND COURT