Broken Hill Cobalt Project Pty Ltd v Lord

[2022] NSWCA 271

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271

Hearing dates:

23 September 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Before:

Ward P at [1]; Mitchelmore JA at [173]; Kirk JA at [174]

Decision:

1.   Appeal allowed in part.

2.   Remit the matter to Duggan J on the question of quantification of the compensation payable by the appellants for the compensable losses identified at [43] and [44]-[46] of the primary judgment.

3.   Costs of the appeal be reserved.

4.   Direct the parties to file brief written submissions as to costs by 3 February 2023, with any brief reply to the other parties’ submissions on costs by 10 February 2023 with a view to the issue of costs being dealt with on the papers.

Catchwords:

ENERGY AND RESOURCES — Mining — Exploration — Licence — Rights — Land access — Where appellants hold Exploration Licences covering land forming part of Thackaringa Station, upon which respondents perform sheep farming — Where title to Thackaringa Station is comprised of freehold and leasehold titles, the leasehold being Crown leases permitting use of the surface of the land for grazing only — Where Exploration Licences held over Crown leasehold land only — Where appellants applied pursuant to s 140 of the Mining Act 1992 (NSW) for access arrangement — Where respondents applied for review of arbitrator’s decision pursuant to s 155 of the Mining Act 1992 (NSW)

ENERGY AND RESOURCES — Mining — Exploration — Licence — Compensation — Heads of compensable loss

APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons

APPEALS — From finding of fact — No evidence

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Land and Environment Court Act 1979 (NSW), ss 33, 38, 39, 56, 57, 148

Land Acquisition (Just Terms Compensation) Act 1991 (NSW)

Mining Act 1992 (NSW), ss 155, 140, 141, 143, 148, 262, 272, Pt 5, Pt 8 Div 2, Pt 13 Div 1

Mining Regulation 2016 (NSW)

Western Lands Act 1901 (NSW)

Cases Cited:

Alexandria Landfill Pty Ltd v Transport for New South Wales (2020) 103 NSWLR 479; [2020] NSWCA 165

Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233

Botany Bay City Council v Farnworth Holdings Pty Ltd [2004] NSWCA 157

Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367

Caratti v Mammoth Investments Pty Ltd (No 2) [2018] WASCA 6

Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353

Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 262

Dadashy v Scholte [2021] VSC 246

David Anthony Lord v Broken Hill Cobalt Project Pty Ltd [2021] NSWLEC 126

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373

Hassoun v Wesfarmers General Insurance Ltd t/a Lumley General [2015] NSWCA 233

Husband v Public Guardian [2016] NSWSC 1720

Lord v Broken Hill Cobalt Project Pty Ltd [2021] NSWLEC 126

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

McKay v Commissioner of Main Roads [2013] WASCA 135

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Mifsud v Campbell (1991) 21 NSWLR 725

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11

Moylan v Nutrasweet Co [2000] NSWCA 337

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39

Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768; [2003] HCA 10

Public Service Board of New South Wales v Osmond (1986) 159 CLR 656

Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

Rosane Pty Ltd v Clarke (2009) 3 ARLR 123; [2009] NSWLEC 1282

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Strbak v Newton [1989] NSWCA 202

Supple v Building Appeals Board [2015] VSC 83

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Valuer-General v Perilya Broken Hill Ltd (2013) 195 LGERA 416; [2013] NSWCA 265

Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24

Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30

Category:

Principal judgment

Parties:

Broken Hill Cobalt Project Pty Ltd (First Appellant)
Cobalt Blue Holdings Ltd (Second Appellant)
David Anthony Lord (First Respondent)
John Montgomery Lord (Second Respondent)

Representation:

Counsel:
I Hemmings SC with J Reid (Appellants)
CL Lenehan SC with PM Lane (Respondent)
Solicitors:
Lander & Rogers (Appellants)
Harris Freidman Lawyers (Respondents)

File Number(s):

2021/00348680

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court of New South Wales

Jurisdiction:

Class 8

Citation:

[2021] NSWLEC 126

Date of Decision:

12 November 2021

Before:

Duggan J

File Number(s):

2021/256624

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellants (Broken Hill Cobalt Project Pty Ltd and Cobalt Blue Holdings Ltd) hold three Exploration Licences over rural land near Broken Hill, New South Wales, forming part of Thackaringa Station. The respondents (David Anthony Lord and John Montgomery Lord) carry on sheep farming on Thackaringa Station. The title to Thackaringa Station is comprised of a number of freehold and leasehold titles. The leases in question are Crown leases which permit use of the surface of the land for grazing only. The Exploration Licences are held only over Crown leasehold land.

The appellants are not permitted to access Thackaringa Station for the purpose of exercising rights under the Exploration Licences without an access arrangement determined under Pt 8 Div 2 of the Mining Act 1992 (NSW) (Mining Act). The appellants applied pursuant to s 140 of the Mining Act for an access arrangement for the purposes of prospecting minerals over defined portions of Thackaringa Station. Arbitration took place pursuant to s 141 of the Mining Act to determine whether (and on what terms) the appellants (the prospecting title holder) would be permitted to have access to the land.

The Arbitrator determined an access arrangement and fixed compensation for the activities of drilling, track making, bulk sampling and “costeaning”. The Arbitrator did not award compensation for access to the property per se; rejecting the proposition that the respondents were entitled to any amount of compensation for non-economic loss. The respondents applied for review by the Land and Environment Court of the Arbitrator’s decision pursuant to s 155 of the Mining Act.

The primary judge determined that the appellants could have access to Thackaringa Station in relation to the three Exploration Licences on the terms of the access arrangement annexed to her Honour’s reasons; fixed compensation for the specific activities of drilling, costeaning, bulk sampling and track making; and awarded a lump sum payment of $20,000 per annum for each Exploration Licence as compensation for non-financial losses.

On appeal to this Court, the principal issues were:

1. Whether the reasons of the primary judge were inadequate;

2. Whether the primary judge erred in awarding compensation for heads of non-financial loss that were not compensable under the statutory scheme;

3. Whether the primary judge made findings and determined the quantum of compensation for non-financial losses in the absence of evidence;

4. Whether the primary judge failed to accord the appellants procedural fairness insofar as her Honour failed to give notice of an intention to value non-financial losses in a manner and with an outcome materially different to the evidence advanced by the parties; and

5. Whether, to the extent that the appellants are successful, the matter ought to be remitted to a different judge.

The Court (Ward P, Mitchelmore JA and Kirk JA agreeing) held, allowing the appeal in part:

As to issue (1):

1. Judicial officers are bound by a general duty to give reasons for their decisions. The duty to give reasons is a manifestation of the principle that not only must justice be done, but it must also be seen to be done. In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard. The standard is not one of perfection: [102], [106] (Ward P), [173] (Mitchelmore JA), [174] (Kirk JA).

   Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; ResourcePacific Pty Ltd v Wilkinson [2013] NSWCA 33; Bisley Investment Corporation v Australian BroadcastingTribunal (1982) 40 ALR 233, applied.

2. Noting that the primary judge’s reasons were given promptly after an expedited hearing, they nevertheless were not adequate insofar as there was no identification of the lump sum amount (of $20,000 per annum per Exploration Licence) that is attributable to the two categories of compensable loss identified in the reasons, being impacts on management and inherent damage to the surface of the land. It was not sufficient for her Honour to nominate a global figure without explaining how it was reached: [114], [116] (Ward P), [173] (Mitchelmore JA), [174] (Kirk JA).

   Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, applied.

As to issue (2):

1. The losses identified as to the impacts on management and the inherent damage are losses that fall within sub-s (f) of s 262 of the Mining Act and are therefore compensable losses. The primary judge provided sufficient reasons for the conclusion that the additional items of compensable loss fall within s 262 of the Mining Act, namely, that the prospecting or mining operations would be likely to have an impact on management decisions that would cause loss, and damage the fragile surface of the land, such damage not being easily rehabilitated: [114], [127] (Ward P), [173] (Mitchelmore JA), [174] (Kirk JA).

As to issue (3):

1. There was not a total absence of evidence as to the quantum of compensation for non-financial losses. The real difficulty was the absence of reasons to demonstrate how those impacts sounded in a lump sum amount as ordered: [139] (Ward P), [173] (Mitchelmore JA), [174] (Kirk JA).

As to issue (4):

1. There was no denial of procedural fairness. The appellants were on notice of those aspects of the loss that the respondents were contending had been caused in addition to the financial loss: [152], [155] (Ward P), [173] (Mitchelmore JA), [174] (Kirk JA).

   Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353; Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298, applied.

As to issue (5):

1. Bearing in mind that the issue on which the matter is to be remitted is as to adequacy of reasons and the caution with which the discretion to remit a matter to a different judge is to be exercised, the matter should not be remitted to another judge. The Court’s power to remit a matter to a different judicial officer is to be exercised sparingly, and by reference to the interests of justice in the particular case. The deficiencies in the reasons of the primary judge may be remedied by remittal to her Honour for consideration and the provision of further reasons: [167]-[170] (Ward P), [173] (Mitchelmore JA), [174] (Kirk JA).

   Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Aloi Holdings Pty Ltd v John Nominees Pty Ltd [2019] WASC 270 (S), applied.

   Dadashy v Scholte [2021] VSC 246; Husband v Public Guardian [2016] NSWSC 1720; Supple v Building Appeals Board [2015] VSC 83, considered.

JUDGMENT

1. WARD P: This matter involves an appeal pursuant to s 57(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) from a decision of Duggan J in the Land and Environment Court of NSW (David Anthony Lord v Broken Hill Cobalt Project Pty Ltd [2021] NSWLEC 126) determining an application by the respondents (Mr David Lloyd and Mr John Lloyd) pursuant to s 155 of the Mining Act 1992 (NSW) (Mining Act) for review of the final arbitral determination in relation to a land access arrangement arbitration concerning Exploration Licences (ELs) 6622, 8143 and 8891 held over rural land near Broken Hill, New South Wales. The review determination included the assessment of the compensation payable for any “compensable loss” as defined in s 262 of the Mining Act (extracted in due course); and it is only this aspect of the primary judge’s determination that is here the subject of challenge.

2. The appellants (Broken Hill Cobalt Project Pty Ltd, to which I will refer as Broken Hill Cobalt, and Cobalt Blue Holdings Ltd, to which I will refer as Cobalt Blue) hold the three ELs in question, those being licences issued under part 3 of the Mining Act, covering about 7,000 hectares of land forming part of what is known as Thackaringa Station.

3. The respondents, as their family has done for over a hundred years, carry on sheep farming on Thackaringa Station, the title to which is comprised of a number of freehold and leasehold titles. The leases in question are Crown leases (permitting use of the surface of the land for grazing only) and the ELs are held only over Crown leasehold land.

4. The proceeding before the primary judge for review of the arbitrator’s final determination was by way of a rehearing, with fresh material able to be adduced in addition to the material considered by the arbitrator (see s 155(6A) of the Mining Act). On such a review, the court has the functions of the arbitrator under Pt 8, Div 2 of the Mining Act, in addition to its other functions. The court is required to specify the compensation for any “compensable loss” as assessed in accordance with Pt 13, Div 1 of the Mining Act (see s 141(2) of the Mining Act).

5. The filing of the respondents’ application for review of the arbitral determination operated to stay the effect of any related access arrangement (s 155(5) of the Mining Act); and that hearing before the primary judge was expedited in those circumstances. Ironically, perhaps, there is no equivalent stay in place pending determination of this appeal. The appellants therefore have the benefit of the determination of the access arrangements for the purposes of their ELs but are challenging the compensation assessed to be payable in relation thereto.

6. The appellants filed a notice of appeal on 11 February 2022. An amended notice of appeal was filed on 13 September 2022.

7. The appeal from her Honour’s decision is limited to questions of law and hence the appellants accept that they are unable to challenge the merits of her Honour’s findings (which no doubt explains at least in part the emphasis placed by the appellants in submissions on this appeal on the issues of adequacy of reasons and denial of procedural fairness; and the fact that the initial ground 2, challenging a finding of fact, was not pressed).

Background

8. As adverted to above, Thackaringa Station is a sheep farming property located near Broken Hill, comprising both freehold and leasehold title (the latter being Crown leases under the Western Lands Act 1901 (NSW)). Thackaringa Station occupies in total approximately 64,610 hectares.

9. For completeness it may be noted that, in addition to the ELs, Broken Hill Cobalt holds two mining leases over parts of Thackaringa Station for which it separately pays compensation to the respondents (in the agreed sum of $3,000 per annum). However, nothing turns on those mining leases for present purposes.

10. The ELs held by the respective appellants (“prospecting titles” for the purposes of Pt 8 Div 2 of the Mining Act) confer exclusive rights upon the appellants to explore for “Group One” minerals (defined in Schs 1 and 2 of the Mining Regulation 2016 (NSW) (the Mining Regulation) to include mineral deposits of cobalt) within the areas designated in each EL. As the respective appellants’ names indicate, the mineral for which the appellants are prospecting under the ELs is cobalt. The ELs do not permit mining, nor do they guarantee that a mining or production lease will be granted; rather, exploration for minerals is a preliminary step to ascertain the location, quality and quantity of a mineral prior to making an application for a Mining Lease under Pt 5 of the Mining Act.

11. The appellants are not permitted to access Thackaringa Station for the purposes of exercising rights under the prospecting authority (i.e., the ELs) without an access arrangement determined under Pt 8 Div 2 of the Mining Act. Hence, the need for determination of the proposed access arrangement. The access paths in relation to the ELs (as are the ELs themselves, as noted above) are located only on the land the subject of the Crown leases.

12. The appellants’ proposed exploration activities on Thackaringa Station are described in an “Indicative Work Program” provided to the Resource Regulator for approval of exploration activity; that program relevantly describing entry by personnel and equipment onto the property seven days a week for 365 days a year during daylight hours. As will be explained below, the intensity of use is a factor that the primary judge took into account on the application for determination of the access arrangement.

13. The appellants applied pursuant to s 140 of the Mining Act for an access arrangement for the purposes of prospecting minerals over defined portions of Thackaringa Station. As the parties were unable to agree to the terms of an access agreement, the access arrangement fell to be determined by an arbitrator in accordance with Pt 8 Div 2 of the Mining Act. Following an unsuccessful mediation, an arbitration took place under s 141 of the Mining Act to determine whether (and on what terms) the appellants (the prospecting title holder) would be permitted to have access to the land.

14. The Arbitrator (Robert Angyal SC) delivered his final determination on 29 August 2021, determining an access arrangement and fixing compensation for the activities of drilling, track making, bulk sampling and “costeaning” (that being a process by which a trench is dug in order to enable access to mineral samples on the horizontal axis – AT 5.17-28). The Arbitrator did not award compensation for access to the property per se; rejecting the proposition that the respondents were entitled to any amount of compensation for non-economic loss.

15. The respondents then applied to the Land and Environment Court under s 155 of the Mining Act for a review of the Arbitrator’s final determination. As noted above, the making of that application had the effect of staying the operation of the access arrangement.

16. In the Land and Environment Court proceeding, the parties agreed that orders should be made requiring the parties to enter into an access arrangement pursuant to s 143 of the Mining Act. However, the terms of the access arrangement and the assessment of “compensable loss” remained in issue.

17. On 12 November 2021, the primary judge determined that the appellants could have access to Thackaringa Station in relation to the three ELs on the terms of the access arrangement annexed to her Honour’s reasons; fixed compensation for the specific activities of drilling, costeaning, bulk sampling and track making (see Annexure F to the access arrangement); and awarded a lump sum payment of $20,000 per annum for each EL. It should be noted that the application was dealt with on an expedited basis. The application was filed on 8 September 2021, expedited on 30 September 2021 and heard over three days on 20-22 October 2021, her Honour handing down judgment three weeks later on 12 November 2021.

8. The appellants here contend that the primary judge has erred on questions of law and they seek an order for the judgment to be set aside and for an order to be made in lieu of the order made by the primary judge (deleting one of the clauses – cl 10.8 – of the approved access arrangement and replacing it with the version for which the appellants had contended) or, in the alternative, remitting the matter to the Land and Environment Court (but before a different judge).

Relevant provisions

19. Under the relevant statutory regime under the Mining Act governing ELs, the respondents are entitled to compensation for any “compensable loss” suffered, or likely to be suffered, by them as a result of the exercise of the rights conferred by the ELs or by an access arrangement in respect of the ELs.

20. Section 262 of the Mining Act defines “compensable loss” as follows:

compensable loss means loss caused, or likely to be caused, by—

(a)   damage to the surface of land, to crops, trees, grasses or other vegetation (including fruit and vegetables) or to buildings, structures or works, being damage which has been caused by or which may arise from prospecting or mining operations, or

(b)   deprivation of the possession or of the use of the surface of land or any part of the surface, or

(c)   severance of land from other land of the landholder, or

(d)   surface rights of way and easements, or

(e)   destruction or loss of, or injury to, disturbance of or interference with, stock, or

(f)   damage consequential on any matter referred to in paragraph (a)–(e),

but does not include loss that is compensable under the Coal Mine Subsidence Compensation Act 2017.

21. Section 272(1)(a) provides that the assessment of compensation payable under Pt 13 of the Mining Act is to be made in the manner prescribed by the regulations. Clause 91 of the Mining Regulation requires the making of such an assessment that has regard to the following factors: the nature, quality, area and particular characteristics of the land concerned; the proximity of the land to any building, structure, road, track or other facility; the purpose for which the land is normally used; and the use of the land that is approved under any development consent that is in force in respect of the land.

22. Although there was some debate at the hearing of this appeal as to where the persuasive or evidentiary onus may lie (and as to the applicability or otherwise of rules of evidence), this arose in the context of argument as to the content of the primary judge’s obligation to give reasons (see below). It appeared to be accepted that the onus of proving compensable loss that is caused, or likely to be caused, by the exercise of rights conferred by an EL or by an access arrangement in respect of an EL rests with the landholder (here, the respondents). Thus, the appellants emphasise that the respondents were required to demonstrate the facts relevant for any liability to be incurred by the appellants.

Evidence

23. In evidence before the primary judge were competing versions of the parties’ proposed access arrangements, as well as expert evidence – the respondents’ expert (Mr Hopcraft), an expert valuer; and the appellants’ expert (Mr Ivey), a forensic accountant with expertise in agro-economics – and evidence from Mr David Lord (some of which was admitted as to his opinion rather than as evidence of the fact – see at T 179 for example).

24. At the hearing before the primary judge, the appellants conceded that (contrary to the Arbitrator’s opinion) compensable loss for the purposes of s 262 of the Mining Act could include non-financial loss (see [19] of her Honour’s reasons). The primary judge recorded her agreement with that concession (see [20]ff of her Honour’s reasons) and the appellants do not take any issue with this on appeal.

25. The access arrangement proposed by the appellants ultimately incorporated three elements of compensation: first, what was described as an ex gratia payment; second, compensation for damage to the surface, and deprivation for the use of grazing, of the land; and, third, compensation for the impact on management. Those are explained in more detail below. (I say “ultimately” because the third element of the compensation proposed under the appellants’ proposed access arrangement was only proffered after debate during the course of the hearing as to the potential impact on management of the proposed access.)

26. As to the so-called ex gratia payment, cl 10.8 of the appellants’ proposed access arrangement provided for a ‘one off’ payment of $3,000 per EL (i.e., a total sum of $9,000). The appellants in their oral submissions say that there was no mathematical precision, nor science, behind that amount; rather, that the proposed one-off payment per EL was an amount that the appellants were willing to pay in order to obtain the access arrangement. The appellants note that the primary judge referred to this ex gratia payment (at [31]-[32]) and rejected that amount as not adequate (at [51]); and instead her Honour allowed a larger lump sum per annum per EL (see below). The appellants complain that it was not for the primary judge in effect to amend an ex gratia payment of this kind.

27. As to the second component of the compensation payments proposed by the appellants, this reflected the appellants’ acceptance that their use of the land pursuant to the ELs would have the likely consequence of damaging the surface of the land and (to the extent that they exist) the trees, grasses or other vegetation on the land. It was accepted that damaged land would not be used by the respondents for grazing purposes.

28. The appellants’ expert, Mr Ivey, derived a rate to be paid, as “compensable loss” referable to the disturbed land, by reference to the profit able to be generated from the land. Under the appellants’ proposed access arrangement (Pt 10), the derived rate was to be paid by reference to the land that suffered both direct and indirect impacts from the various activities carried out pursuant to the EL (see Annexure F, cl 4 of the court approved access arrangement); and this payment was to continue until the disturbed land had been rehabilitated to the satisfaction of the Resources Regulator (cl 10.10 of the proposed access arrangement; cl 10.8 of the court approved access arrangement).

29. In contrast, the respondents’ expert (Mr Hopcraft) took a different approach to the assessment of loss for damage to the land (until rehabilitated), adopting a process of comparing market arrangements to arrive at a market price analysis. Mr Hopcraft quantified both the non-financial and financial losses as a single sum. Her Honour noted (at [49]) that the premise underlying Mr Hopcraft’s determination of the quantum of compensation was that a comparison of amounts paid to both the respondents and other landholders in other access arrangements permitted the determination of a “market price”.

30. The primary judge rejected Mr Hopcraft’s market price approach (for the reasons set out at [49]-[50]) and instead imposed a requirement to pay compensation for the disturbance, as identified by the appellants and at the rates identified by the appellants, until the land was rehabilitated.

31. As to the third component of the compensation payment regime (compensation for the impact on management), as adverted to above, this appears first to have arisen following cross-examination by the respondents of Mr Ivey as to the potential impact on the management of the farm of use or access to the land.

32. In cross-examination Mr Ivey accepted that it might be appropriate for there to be a nominal amount by way of a payment for inconvenience or loss of amenity (Mr Ivey suggesting that a single $5,000-$10,000 “one off” payment for the three ELs, collectively, might be appropriate). There was also an issue raised by the primary judge as to extra time that would be taken by management to take into account the impacts of the ELs on the operation of the farm and of any necessity to move the stock. Mr Ivey then prepared a document (which became Ex 9) containing a calculation of financial loss consistent with that evidence (which then became cll 10.9 and 10.10 of the appellants’ proposed access arrangement). On appeal, the appellants say that this evidence was at least implicitly rejected by the primary judge, noting that there was no mention in the judgment of Ex 9, nor of Mr Ivey’s evidence as to how the financial impacts on the management of the farm might be calculated.

Primary judgment

33. Turning to the manner in which the primary judge approached the issue of compensable loss, her Honour first (from [18]-[21]), under the hearing “[i]dentification of items of compensable loss”, addressed the issue as to whether the only compensable loss that could arise under the provisions of Pt 13 of the Mining Act was financial loss (an issue that had been determined in the affirmative by the Arbitrator at [34] of the Final Determination). Her Honour noted that the appellants had abandoned that construction but recorded that had she been required to determine that issue she would not have taken the same approach to the legislative language of the statute for the reasons there set out ([20]). Her Honour concluded (at [21]) that the compensable loss defined in s 262 was not limited to financial losses and could include other, non-financial losses provided such losses were likely.

34. In the course of addressing that issue, her Honour commented (at [20](4)) that the types of considerations set out in cl 91(2) of the Mining Regulation 2016 (NSW) brought to mind “factors that can generally fall within the broad term “loss of amenity” as well as identifying any financial cost”. Thus, her Honour had in mind at this point a general concept of “loss of amenity” as one that could form part of the consideration of compensable loss.

35. Her Honour next turned (from [22]-[27]) to the quantification of compensation for items of compensable loss.

36. At [23], her Honour noted that there was agreement between the experts as to the items and quantification of financial losses (which were dealt with in cll 10.1, 10.2 and Annexure F cll 1-8 of the appellants’ proposed access arrangement). With one exception (which related to a distinction for use of existing tracks “which do not require construction but have been rehabilitated” – such as tracks that had been created by other miners and were required to be rehabilitated but would be used by the appellants and not rehabilitated until the completion of their prospecting operations), her Honour considered that the appellants’ proposed terms were appropriate. There is no appeal from that conclusion.

37. Her Honour noted (at [24]) that, as a consequence of the evidence, the appellants had prepared further provisions enabling the limitation of areas of disturbance as a means of quantifying the actual areas disturbed (cl 10.3 of the appellants’ proposed access arrangement) and considered that it was appropriate that such provision be included in the access arrangement as it provides certainty as to the calculation of financial losses and the ability for the respondents adequately to identify the compensation amounts to be paid to them.

38. As to non-financial losses, the primary judge noted (at [25]) that the respondents had identified, through Mr Hopcraft’s report, non-financial losses that they contended would comprise compensable loss as defined in the Mining Act, namely, the impact on Thackaringa Station “and its management” of five things: intrusion of light and heavy vehicles onto the property for extended periods of time; that a large number of mining personnel associated with the exploration would be working on Thackaringa Station for an extended period of time; the risk that security deposits, if called upon, might be insufficient to rectify or rehabilitate exploration works; that the presence of heavy exploration equipment and other items might give rise to intrusion of criminals or unauthorised persons; and that there would be additional work and supervision by management in relation to the management of livestock within the exploration areas.

39. At [26], her Honour said:

26.   In addition, in the Applicants’ submissions, the inherent damage to the surface of the Land and the vegetation on it were identified as heads of compensable loss for which a non-financial loss should be determined.

40. This concept of inherent damage (considered in due course) was referred to at times in submissions as damage per se.

41. After addressing the evidence from the respective valuers (at [27]-[32]), her Honour then set out her findings on the quantification of compensable loss (from [33]-[55]).

42. Relevantly, her Honour noted (at [33]), that the financial losses (i.e., those that had been agreed and dealt with earlier in the judgment) take account only of the fact that a portion of the respondents’ land will be physically occupied by the appellants and thereby unavailable for economic exploitation by the respondents; and said that it was necessary to determine whether there would also be non-financial losses capable of comprising a compensable loss within the meaning of the statute. (The appellants here point out that the access arrangement as approved continues to make provision for compensation for financial losses even after physical occupation has ceased, since it continues until rehabilitation of the land; and also that the compensation for indirect disturbance encompasses areas of land not physically occupied.)

43. At [38], the primary judge rejected certain of the factors identified by the respondents’ expert (Mr Hopcraft) as factors giving rise to a compensable loss within the meaning of s 262, namely: the mining works and equipment acting as an attraction for unauthorised and criminal persons to enter the land; and the adequacy of the quantum of security deposits paid pursuant to the terms of the ELs (those being the factors set out in her Honour’s reasons at [25](4) and [25](3) respectively). Her Honour considered that those matters fall outside the ambit of the definition of compensable loss but in any event said that she did not have any evidence to permit a finding that the prospect of such losses was “likely” (and for that reason also those would fall outside the ambit of s 262) ([39]).

44. The primary judge went on to identify the remaining matters related to the loss as being (at [40]) those that would arise as a consequence of the intensity of the use of the land by the appellants (intensity of use) and the physical damage to the surface of the land and the vegetation on such land as a consequence of the occupation and use by the appellants (this being the concept of inherent damage to the land beyond that for which compensation was to be awarded for financial loss – see below).

45. The primary judge noted (at [41]) the contention that the intensity of use had the consequence that farming decisions would always have to be made in the context of the appellants’ presence (and that this intensity was reflected by: the number of days; the number of people; the number of movements of machinery and vehicles; and the number of locations upon which the prospecting operations would occur).

46. Her Honour said (at [42]) that:

42.   Whilst each of these factors do have the financial effect of preventing the Applicants [i.e., the respondents] from occupying the Land for sheep grazing and that such impact has been provided for in the financial loss compensation, the loss is more than the mere inability to graze the Land.

47. The factors to which her Honour was there referring seem in context to be those referred to in [41] (not the second of those referred to in [40] i.e., relating to physical damage to the land). The appellants complain that no explanation is given for the finding (and they say there is no evidence or submissions referred to or relied upon by the primary judge) for the finding that “the loss is more than the mere inability to graze the land”.

48. At [43], the primary judge concluded that:

43.   The mere fact of the presence of people and vehicles on the Land for 7 days per week for a number of years provides an intrusion that would not be experienced but for the Prospecting Operations. This intrusion will require the Applicants to consider the presence of these persons and the activities in all aspects of their use of the balance of the Land. The mustering of their flock, the movement of stock through paddocks, the travelling along the access tracks within the Land and the capacity to make other management decisions relating to the use of the Land as a whole will be impacted during the term of the Access Arrangement. This is a loss that cannot be measured by time spent in the handling of stock as it goes well beyond that action. The interference to management and influence upon management decisions is, in the circumstances of this case, a loss capable of comprising compensable loss within the heads of loss in s 262 as it is consequential upon the deprivation of the possession or of the use of the surface of land or any part of the surface, together with the loss being consequential on the disturbance of or interference with, stock. These management considerations are likely losses within the meaning of the definition in s 262 and, therefore, comprise a compensable loss for which compensation must be determined.

[My emphasis]

49. Pausing here, the sentence italicised in the extract above received no little attention in the course of submissions on the appeal. The appellants say that, although no reference is here made to it, this paragraph ([43]) could be a consideration by her Honour of Ex 9 and Mr Ivey’s evidence in relation thereto. It certainly seems to be an implicit reference to the calculation set out by Mr Ivey in what became Ex 9, which included an hourly rate for those involved in the handling of stock (one hour every three months for management planning and an hourly amount for farm hands or the like). As I read it, what her Honour was there saying was that the “loss” represented by the management time that would be taken up by making management of land decisions in the context of the appellants’ presence would extend to more than the fact that decisions would have to be made as to stock handling that would not have had to be made but for the presence of the appellants on the land. That reading would be consistent with her Honour accepting the premise of Ex 9, to the extent that it contemplates that the impacts on management may be compensated by reference to hourly rates of those involved in management, but her Honour considering it to be an under-estimate of the time that would be involved.

50. Complaint is made by the appellants that the reasoning in this paragraph is opaque, and that no grounds for the rejection of Ex 9 and Mr Ivey’s evidence are given; nor is any alternative evidence, or submissions, relied upon for the conclusion that the loss by reference to the impact on management decisions was more than the inability to graze the land. (The appellant says that the primary judge’s approach to quantification of the loss for this impact on management is contained solely within [53] and [54] of the reasons – see below.)

51. The primary judge then turned to the second of the factors identified at [40], namely the concept of damage to the surface of the land “inherent in the carrying out of the Prospecting Operations. At [44], her Honour accepted the respondents’ submissions “based upon the evidence” that it was inherent in the carrying out of the prospecting operations that there would be damage to the surface of the land (arising from the disturbance to the surface of the land and the vegetation upon it). Her Honour gave, as a non-exhaustive example of such disturbances, the drilling platforms and the existing and proposed use of access tracks.

52. Her Honour said (at [45]-[46]) that:

45.   It is accepted that these disturbed areas of land will ultimately be rehabilitated to the satisfaction of the relevant regulatory authority, however, from the period of the commencement of access until completion of the rehabilitation there will be a lengthy period where the damage will be present. The rehabilitation of such areas after the Prospecting Operations have been completed does provide an end date to the damage but does not preclude a finding that such damage has occurred and that such damage may comprise a non-financial loss for which the Applicants are entitled to compensation. Such compensation relates to the actual period of occupation by Cobalt on the Applicants’ Land.

46.   In the circumstances of this case the evidence is that the Land is fragile. It is subject to erosion and its vegetation is sparse. That is the context within which the Prospecting Operations will occur and exemplifies the fact that the damage sustained to the Land during the period of access is not compensated for in the determination of financial losses which relate solely to the inability for the sheep to graze those areas during access. Accordingly, I find that there is the additional head of compensable loss for such damage relating to disturbed areas and consequential disturbance caused by the clearing and use of such areas.

53. Pausing here, there was some evidence of the fragility of the surface of the land and the possibility of damage to the “cryptogamic crust” or erosion. However, it is not apparent how that is to be or has been measured (noting that physical damage that has the consequence of precluding grazing on the land must be within the compensation provided for that financial loss). The appellants say that the damage here being assessed is something in addition to the financial loss for damage that her Honour has already accepted. Complaint is made that one cannot discern from the judgment what this additional compensation is for. The appellants say that if it is the mere fact of damage then it is unclear why the respondents are to be compensated for that fact (in addition to the impacts on the respondents’ use of the land). It might potentially be some form of compensation for loss of amenity (as perhaps foreshadowed earlier at [21]) but, if so, the appellants complain that there has been a denial of procedural fairness (see below) in that there was no claim made for loss of amenity.

54. The primary judge candidly acknowledged that there was difficulty in determining the appropriate compensation for such non-financial losses as had been found (i.e., the impact on management decisions and the inherent damage to the land or damages per se), saying at [47] that:

47. The exercise of determining the appropriate compensation for such non-financial loss is difficult as the compensable losses that I accept are caused by Prospecting Operations are not easily measured by some accepted calculation. Notwithstanding that difficulty, the Mining Act requires a determination of compensation. Inherent in those provisions of the Mining Act is the anticipation that there will be a ”payment” of compensation. The reference to a payment of compensation contemplates a determination of a monetary sum, or some other measurable benefit, that will compensate the Applicants for their loss. In this exercise as the Mining Act requires a determination of the compensation amount (ss 141(2), 272 and 275), I must do the best I can on the evidence available to me to determine the appropriate amount.

55. Complaint is here made by the appellants that the primary judge appeared to consider that she was obliged to make a determination as to compensation (as opposed to the position that if her Honour was not satisfied on the evidence as to the appropriate quantum for compensable loss then the respondents would not have satisfied their onus and in those circumstances either there might be no order for compensation for such losses or the application might simply be dismissed).

56. Her Honour rejected (at [48]-[50]) the “market price” approach of Mr Hopcraft but said (at [51] that the written evidence of Mr Ivey was of little assistance (as it only considered the financial losses) and that his oral evidence (determining a lump sum payment “for inconvenience or loss of amenity”) did not encompass the totality of the losses that her Honour had identified as compensable losses. Her Honour thus did not accept that a single lump sum payment of $3,000 per EL was an adequate sum for compensation for the non-financial losses.

57. Her Honour’s ultimate conclusion as to the question of compensation for the non-financial losses was set out at [53]-[54]:

53.   Doing the best I can with the evidence that is before me I consider that it is appropriate, having regard to the nature, quality, area and particular characteristics of the Land, together with the use of the Land for grazing purposes, the Prospecting Operations, and the periods on which Cobalt will have the right under the Access Arrangement to enter upon the Land, that a lump sum per annum should be payable. Such an annual payment will compensate the Applicants for the losses in connection with both the damage to the surface of the Land until such time as it is rehabilitated and the impacts upon the management of the grazing enterprise.

54.   In determining the quantum of such compensation I have had regard to the fact that Cobalt will be entitled to access the Land for 365 days each year and the time that the landholders will need to expend time each day in their farming activities to account for the presence of Cobalt on the Land. I have had regard to the award wage for a farm manager of $50/hour together with potential additional costs for vehicle and equipment, together with other wage costs for farm hands [this must be a reference to Ex 9] . I have had regard to the extent of damage to the Land caused by the creation of tracks, the continuation of use of existing tracks and the drilling locations in the context of the totality of the Prospecting Operations that Cobalt has identified in its works program. Doing the best I can to synthesise these losses into a lump sum, I determine that a sum is $20,000 per annum per Exploration Licence is appropriate.

58. The appellants say that the language here used (of “doing the best” that her Honour could) is that which is frequently adopted by judges in the Land and Environment Court when approaching the task of the judicial valuer in the assessment of compensation under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) but that this was not her Honour’s role in the present case. The appellants also argue that the language (at [54]) of synthesising the additional losses into a lump sum may be a reference to the instinctive synthesis process used to determine penalty in criminal proceedings (see, for example, Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25) but, again, they say that this was not her Honour’s role.

59. Her Honour then went on to address provisions in the access arrangement to facilitate the payment of the sum for non-financial loss (see at [55]); and then turned to the issues raised as to disputed provisions of the proposed access arrangement (from [56]ff). It is not necessary here to consider those.

60. More pertinently, complaint is made that it is not possible to determine how the synthesised lump sum of $20,000 per annum per EL is calculated, noting that this lump sum represented the assessment of compensation both for the impact on management and the inherent damage or damage per se. Complaint is made that it is not possible to determine how the lump sum is apportioned as between those two heads of compensable loss.

61. The appellants say that whatever component relates to management, it is unclear why it would relate to each EL, rather than to the operation of the single farm; and that although (at [54]) her Honour appears to have regard to a farm manager’s wages (see Mr Ivey’s evidence and Ex 9) it is not possible to determine how her Honour has used that evidence. Further, the appellants say that whatever component relates to the inherent damage, it is unclear why it is an annual amount, and not a one-off payment.

62. Complaint is also made that, in relation to each additional head of compensable loss, it is difficult to understand why the lump sum would be the same for each EL as they were of varying sizes (EL8891 was 11 units; EL8143 was 4 units, and EL6622 was 17 units, being approximately 2,220m² per unit), and each EL had significantly varying scopes of proposed exploration activity with the bulk of drilling activity concentrated within the area of EL 6622.

Grounds of appeal

63. By amended notice of appeal filed on 13 September 2022, the appellants raise the following grounds of appeal

1.   The primary judge erred in law by finding (at [53]) that non-financial losses should be compensated by way of a lump sum per annum payment in the absence of evidence.

2.   [NOT PRESSED]

3.   In the alternative to ground 1, the primary judge erred in law by denying the appellants procedural fairness by not providing notice of an intention to value non-financial losses in a manner, and with an outcome, materially different to the evidence advanced by the parties.

4. The primary judge erred in law in finding (at [43]) that the interference to management and influence upon management decisions caused by prospecting operations is likely to generate a ‘non-financial’ compensable loss pursuant to s 262 of the Mining Act 1992.

5. The primary judge erred in law in finding (at [46]) that damage to the surface of the land is likely to be a ‘non-financial’ compensable loss pursuant to s 262 of the Mining Act 1992.

6.   The primary judge erred in law by failing to give reasons, or failing to give adequate reasons, as to how the determination (at [53]-[54]) of compensation for ‘non-financial losses’ in the sum of $20,000 per annum per Exploration Licence was calculated.

64. The orders sought by the appellants (if the appeal is allowed) include for the judgment of the primary judge to be set aside and, in lieu thereof, an order be made in the following terms:

…    an order that “Annexure A” referred to in order 2 made by the Court below be amended to delete clause 10.8 and replace it with:

10.8   On 1 June in each calendar year and until the Resources Regulator has expressed satisfaction of the rehabilitation condition 6 in each of the Exploration Licences, BHCP and COB shall pay the Grantor an allowance for additional labour cost of moving lambing ewes between paddocks in the sum of $1,792.24 representing:

Movement of stock (lambing ewes)

10.9   At the commencement of this Arrangement and thereafter every 3 calendar months until the Resources Regulator has expressed satisfaction of the rehabilitation condition 6 in each of the Exploration Licenses, BHCP and COB shall pay to the Grantor an allowance for 1 hour of time spent liaising with BHCP and COB in the sum of $50.00.

65. In the amended notice of appeal, alternative orders are included in the event that the appeal is allowed but the matter is to be remitted to the Land and Environment Court. As noted earlier, the appellants seek an order that any remitter be to a judge other than the primary judge.

66. It is convenient to address the grounds of appeal in the order in which the appellants proceeded in their oral submissions, namely, by focussing first on ground 6 (the adequacy of reasons ground).

Ground 6 – Adequacy of reasons

Appellants’ submissions

67. The appellants appear to accept that the duty to give reasons did not require the primary judge to undertake “a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process” but they say that there needs to be an adequate description of the process undertaken to address the principal contested issues (citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis)). The appellants maintain that the identification of the “new” grounds of loss (i.e., the loss referable to the impact on management and the inherent damage or damage per se) were matters for which the primary judge was required to give adequate reasons and that, once her Honour had identified those additional heads of compensable loss, it was then similarly necessary for her Honour to provide adequate reasons for the approach to the assessment of compensation for those additional heads.

68. The appellants refer to the recognised purpose for the giving of adequate reasons (namely that it is to enable the parties to see the extent to which their arguments have been understood and accepted, as well as the basis for the relevant decision), citing Soulemezis at 279; and noting that in Alexandria Landfill Pty Ltd v Transport for New South Wales (2020) 103 NSWLR 479; [2020] NSWCA 165 (Alexandria Landfill) at [29], this Court said that:

… Having regard to the purpose of giving reasons, the standard is properly identified negatively: it must be shown that the decision has not been reached capriciously or arbitrarily, but rationally. The reasons must thus reveal that all material factors have been identified and addressed, and that no prohibited considerations have been operative. If there is an available process of reasoning from the evidence to the outcome which has been adopted, either expressly or by implication, the appellate court should be slow to reach the conclusion that the function of the trial court has not been exercised according to law.

69. The appellants complain (in relation to what is referred to as the impacts on management head of compensable loss) that it is not possible from the reasons to determine why it is that her Honour concluded (at [43]) that the loss was not one that could be measured by time spent in handling the stock and, in particular, that the reasons do not disclose what is the loss going beyond the handling of stock which is to be measured; nor how that additional loss is to be quantified. Complaint is made that there is no attempt to explain why the appellants’ approach, supported by Mr Ivey’s evidence and Ex 9, does not capture that loss.

70. Similarly, as to the compensation for the damage referred to at [46], complaint is made that, other than describing that damage as one that is “additional” and that it arises from “damage relating to disturbed areas and consequential damage”, the primary judge does not disclose what that damage amounts to; nor how it is to be assessed.

71. The appellants say that, to the extent either of those additional heads of compensable loss was available, the primary judge does not identify: any evidence that she has rejected in order to arrive at the findings (including the implicit rejection of Mr Ivey’s evidence); the evidence relied upon in order to inform the conclusion; and, or alternatively, the submissions of the parties, either for or against, the conclusion which was reached.

72. As adverted to earlier, the appellants complain that, as to the quantification of those additional heads of compensable loss, they are not able to discern from the reasons: how it was that her Honour arrived at the $20,000 lump sum for each EL; how it was that $20,000 is to be allocated between the two additional heads of compensable loss; why the additional management loss is referable to each EL and not the one farm that is being managed; why the additional damage head is annual and not a single lump sum payment; and why the additional lump sum is the same for each EL when they are materially different areas, with significantly varying scopes of proposed exploration activity (the bulk of drilling activity being concentrated within the area of EL 6622).

73. The appellants say that the primary judge appears to have rejected an approach to quantification of loss likely to be caused by impacts on management (that being the approach of Mr Ivey); conflated it with some general concept of inconvenience; and then (in a manner which they complain was left unexplained) provided for it in a lump sum.

74. It is submitted that the decision has been reached arbitrarily and that, by failing to provide adequate reasons in relation to these principal contested issues, her Honour has erred on a question of law. The appellants submit that this ground is sufficient to warrant the decision being set aside.

Respondents’ submissions

75. The respondents contend that the statutory context and the particular circumstances of the case indicated that the standard to be discharged by the primary judge as to the provision of reasons was relatively undemanding; and that, applying that standard, the primary judge’s reasoning was sufficient and involved no error of law.

76. Insofar as the duty to give reasons is concerned, the respondents emphasise that this was a review pursuant to s 155 of the Mining Act and they say that this has consequences for the scope of the duty, pointing out that Pt 8, Div 2 of the Mining Act provides for a scheme of mediation and arbitration in respect of access arrangements for prospecting titles and that in conducting a review of the arbitrator’s determination, the court has the functions of an arbitrator (in addition to its other functions). It is noted that the review is by way of rehearing; that fresh material or material in addition to, or in substitution for, the material considered on the making of the determination by the arbitrator may be given on the review and taken into consideration by the court; and that the decision reached by the court is to be given effect as if it were the determination of the arbitrator. The respondents say that this involves the court conducting a de novo hearing, standing in the shoes of the arbitrator.

77. Emphasis is placed on the fact that the review proceedings are governed by s 148(2) of the LEC Act, which requires the court to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”; and that it has been recognised that this confers a “deal of procedural flexibility” (see Rosane Pty Ltd v Clarke (2009) 3 ARLR 123; [2009] NSWLEC 1282 (Rosane) at [6]). It is noted that in Rosane (at [7]) it was said that an “arbitrator is in a position analogous to that of a non-lawyer Commissioner of [the Land and Environment] Court exercising a merit review jurisdiction in classes 1, 2 or 3 of the Court’s jurisdiction”. (The respondents say that this view is reinforced by the “[l]and access arbitration procedure” made, by order published in the gazette, under s 148A of the Mining Act, referring to various provisions of that procedure – see [3.1]; [21.2](b); and [25.6].

78. The respondents argue that the informality and flexibility in the manner which the court exercises the functions under s 155(6) of the Mining Act are indicative that the function is other than judicial power; as, they say, are the provisions of the LEC Act which permit that function to be exercised by one or more Commissioners of the Court. The respondents point in this regard to the description of the function as “arbitration”.

79. The respondents also note that the more particular function which the court was called upon to exercise in this case concerned the requirement to specify the compensation to which the respondents are entitled under Div 1 of Pt 13 of the Mining Act. They say that the identification of elements of compensable loss involves predictive components (as to loss likely to be caused by specific actions or damage likely to arise from prospecting or mining operations) and that the definition of compensable loss is not a narrow gateway; that it embraces potential effects which are capable of being foreseen at the time the access arrangement is determined. The respondents argue that, necessarily, the assessment of the loss likely to be caused by such matters will involve a degree of imprecision and evaluative judgment; and that this is particularly so when (as they point out is now common ground) that provision is properly construed as extending to compensation for non-financial losses.

80. The significance that the respondents attach to the above relates to this Court’s recognition that the content of the obligation to give reasons turns, in part, upon the statutory context and the nature of the function performed by the relevant tribunal (citing Alexandria Landfill per Macfarlan JA at [294] and Leeming JA at [404]); and that the adequacy of reasons is not to be judged as against a standard of perfection (rather, the question is whether the reasons attained the minimum acceptable standard) (citing New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr) at [66] per Bell P (as his Honour then was). The respondents say that in the present case the minimum standard was relatively undemanding for the following reasons.

164. Bearing in mind that the issue on which the matter is to be remitted is as to adequacy of reasons and the caution with which the discretion to remit a matter to a different judge is to be exercised, I am of the view that the matter should not be remitted to a different judge. Rather, any deficiencies in the reasons of the primary judge can be rectified by the remittal of the matter to the primary judge for further consideration and the provision of additional reasons. Indeed, such was the relief granted in, inter alia,Dadashy v Scholte [2021] VSC 246 per Gorton J; Husband v Public Guardian [2016] NSWSC 1720 per Slattery J; and Supple v Building Appeals Board [2015] VSC 83.

165. Finally, I consider that the overriding statutory mandate for the just, quick and cheap resolution of the real issues in dispute (see s 56 of the Civil Procedure Act 2005 (NSW) reinforces the above conclusion and provides a compelling reason for the matter to be remitted to a judge with a familiarity with the issues involved in the matter (i.e., the primary judge) particularly where the access arrangement is, as I understand it, already in operation and it is undesirable that the issue of compensation for compensable loss remain unresolved.

Costs

171. As to costs, the respondents indicated at the hearing that they would seek to be heard on costs regardless of the outcome of the appeal and that they considered that this could be addressed by short written submissions once the reasons were delivered. The appellants acceded to that course. Accordingly, costs will be reserved and directions will be made for the filing of brief written submissions on costs with a view to that issue being determined on the papers.

Orders

172. For the above reasons I propose the following orders:

1. Appeal allowed in part.

2. Remit the matter to Duggan J on the question of quantification of the compensation payable by the appellants for the compensable losses identified at [43] and [44]-[46] of the primary judgment.

3. Costs of the appeal be reserved.

4. Direct the parties to file brief written submissions as to costs by 3 February 2023, with any brief reply to the other parties’ submissions on costs by 10 February 2023 with a view to the issue of costs being dealt with on the papers.

173. MITCHELMORE JA: I have had the advantage of reading Ward P’s judgment in draft. I agree with the orders that her Honour proposes and with her Honour’s reasons.

174. KIRK JA: I agree with Ward P.

**********

Decision last updated: 16 December 2022