Gold and Copper Resources Pty Limited v Newcrest Mining Limited (No 2)

[2014] NSWLEC 160

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gold and Copper Resources Pty Limited v Newcrest Mining Limited (No 2) [2014] NSWLEC 160

Hearing dates:

1 October 2014

Decision date:

01 October 2014

Jurisdiction:

Class 8

Before:

Biscoe J

Decision:

(1) The notice of motion of the second respondent filed on 29 September 2014 be heard instanter.

(2) Orders 2, 4 and 5 made by Biscoe J on 17 September 2014 be stayed until further order.

(3) The second respondent file and serve a summons seeking leave to appeal from Order 2 by 15 October 2014.

(4) The second respondent is to pay the applicant's costs of the notice of motion referred to in Order (1).

(5) Liberty to apply on three days notice.

Catchwords:

PRACTICE AND PROCEDURE - judicial review proceedings - stay of order to Minister to provide a statement of reasons and to stay related interlocutory orders because Minister seeks leave to appeal.

Legislation Cited:

Uniform Civil Procedure Rules 2005 r 59.93

Cases Cited:

Gold and Copper Resources Pty Limited v Newcrest Mining Limited [2014] NSWLEC 148

Category:

Procedural and other rulings

Parties:

Gold and Copper Resources Pty Limited (Applicant)
Newcrest Mining Limited (First Respondent)
Minister for Resources and Energy (Second Respondent)

Representation:

COUNSEL:
J Hones, solicitor (Applicant)
S Hahn, solicitor (First Respondent)
L Waterson (Second Respondent)
SOLICITORS:
Hones La Hood (Applicant)
Allens (First Respondent)
Crown Solicitor's Office (Second Respondent)

File Number(s):

80455/14

EX TEMPORE Judgment

1. This is a contested urgent motion by the second respondent Minister to stay Orders 2, 4, and 5 made by me on 17 September 2014 in Gold and Copper Resources Pty Limited v Newcrest Mining Limited [2014] NSWLEC 148.

1. Those orders are in the following terms:

...

(2) The second respondent is to provide to the other parties by 5pm on 1 October 2014 -

(a) a copy of the decision to grant the renewal of EL 3856 on 17 January 2014; and

(b) a statement of reasons for that decision, prepared in accordance with r 59.9(3) of the Uniform Civil Procedure Rules 2005.

...

(4) The proceeding, including the first respondent's application for security for costs in paragraph 3 of its notice of motion filed on 15 July 2014, is listed for directions on 10 October 2014.

(5) If the applicant seeks to amend the summons, it must file and serve a notice of motion returnable on 10 October 2014 seeking leave to amend and annexing a copy of the proposed amended summons, together with any supporting affidavits, on or before noon on 7 October 2014.

1. The time for compliance with Order 2 is today, 1 October. The motion was filed on 29 September 2014. The matter came before me on short notice late yesterday afternoon 30 September and, after short argument, was stood over to first thing this morning to permit the Minister to put forward further evidence and to draft intended grounds of appeal. Both these matters were attended to overnight.

1. The motion is opposed by the applicant. The first respondent, Newcrest, supports the Minister. The subject matter of the proposed appeal - in particular the proposition that I erred in making Order 2 that the Minister provide a statement of reasons - will be rendered futile if the stay is not granted today because Order 2 requires the statement of reasons to be provided by 5pm today. As my earlier reasons for judgment suggest, further progress of the substantive proceedings is likely to be dependant upon the Minister's provision of reasons as required by Order 2.

1. The applicant opposes a stay on three grounds. First, the subject matter of the proceedings in this Court is unaffected by the proposed application for leave to appeal to the Court of Appeal. I am not sure that is so but if it is I do not see that as a reason for refusing a stay. Secondly, the applicant submits that the Minister has to demonstrate a reason for the stay. In my view, the Minister has demonstrated a reason for a stay, namely, that the subject matter of the proposed appeal will be rendered futile unless the stay is granted. Thirdly, the applicant submits that there has been undue delay by the Minister in his proposed approach to the Court of Appeal. In response, the Minister agrees he should be required to file a summons seeking leave to appeal within the 28 days prescribed by the rules (not later as the Minister had originally proposed). The affidavit evidence of the solicitor for the Minister satisfies me that the Minister has moved and intends to move with sufficient expedition such that a stay should not be refused on account of delay. I conclude that a stay should be granted.

1. The orders of the Court are as follows:

(1)   The notice of motion of the second respondent filed on 29 September 2014 be heard instanter.

(2)   Orders 2, 4 and 5 made by Biscoe J on 17 September 2014 be stayed until further order.

(3)   The second respondent file and serve a summons seeking leave to appeal from Order 2 by 15 October 2014.

(4)   The second respondent is to pay the applicant's costs of the notice of motion referred to in Order 1.

(5)   Liberty to apply on three days notice.

Decision last updated: 03 October 2014