GS Coal Pty Ltd v Cross - [2017] QLC 40

LAND COURT OF QUEENSLAND

CITATION: GS Coal Pty Ltd & Ors v Cross [2017] QLC 40

PARTIES: GS Coal Pty Ltd
Mitsubishi Development Pty Ltd
J-Power Australia Pty Ltd
JCD Australia Pty Ltd
(applicants)

v

Robyn Cross
(respondent)

FILE NO/s: MRA018-17

DIVISION: General division

PROCEEDING: Hearing of an application

DELIVERED ON: 15 August 2017

DELIVERED AT: Brisbane

HEARD ON: 20 July 2017

HEARD AT: Brisbane

PRESIDENT: FY Kingham

ORDER/S: The matter is listed for further directions on a date to be fixed after consultation with the parties.

CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – EXPERT EVIDENCE – CONFIDENTIAL INFORMATION – where the respondent engaged an air quality expert witness – where the expert witness identified a possible conflict of interest – where the expert witness received information which was not common or public knowledge, for the purpose of preparing an expert report for the respondent – where the respondent objected to the applicant’s nomination of the expert – where it was found there is a real and sensible risk the confidential information will be misused

Land Court Act 2000 s 52B, s 22
Mineral Resources Act 1989 s 265, s 268(2)

Allianz Australia Insurance Limited v Mashaghati [2017] QCA 127, applied
Australian Leisure and Hospitality Group Pty Ltd v Stubbs [2012] NSWSC 215, followed

BHP Billiton Mitsui Coal v Isdale [2015] QSC 107, cited

Dunn v Bertenshaw (2010) 31 QCLR 157, cited

Optus Network Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281, followed

Protec Pacific Pty Ltd v Cherry [2008] VSC 76, followed

APPEARANCES: DG Clothier QC instructed by Allens Lawyers, for the applicant
R Cross the respondent, in person

GS Coal Pty Ltd and the other applicants applied for a mining lease to expand the Clermont Coal Mine. Mrs Cross, who lives on a property adjoining the proposed ML area, objected to the application. The application and objection were referred to the Court for a mining objections hearing.[1]
[1]Pursuant to Mineral Resources Act 1989 s 265. That is a recommendatory provision: Land Court Act 2000 s 52A.

The matter is in the pre-hearing stage. The parties have nominated the expert witnesses they intend to rely on at the hearing. The next stage is for the experts to confer and produce a joint report about the issues on which they can advise.

Mrs Cross has nominated Dr John Taylor as the expert witness she intends to call to inform the Court in relation to air quality impacts, one of her grounds of objection to the application. Some years ago, Dr Taylor was engaged to review meteorological and dust monitoring data for the Clermont Mine by its then operator, Rio Tinto Coal Australia Pty Ltd. Dr Taylor raised this with Mrs Cross who, properly, informed the lawyers for GS Coal.

In conducting a mining objections hearing, the Court may take evidence, hear persons, and inform itself in a manner it considers appropriate.[2] GS Coal submits the Court should not inform…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GS Coal Pty Ltd v Cross

Details

AGLC: GS Coal Pty Ltd v Cross [2017] QLC 40
Case: [2017] QLC 40
Decision Date: 15 August 2017

CaseChat Overview and Summary

GS Coal Pty Ltd brought an application against Cross regarding a dispute involving air quality concerns and expert evidence. The applicant, GS Coal, sought to challenge the admissibility of expert evidence provided by an air quality expert witness engaged by the respondent, Cross. The case was heard in the Federal Court of Australia. The primary issue before the court was whether the expert witness, who had received confidential information in the preparation of an expert report, could provide evidence that might disclose this confidential information. This raised questions about the admissibility of the expert’s evidence due to a potential conflict of interest.

The court examined whether there was a real and sensible risk that confidential information would be misused if the expert witness was allowed to provide their evidence. The court considered the nature of the information received by the expert, its sensitivity, and the steps taken to protect it. The court found that the information in question was not common or public knowledge and had the potential to cause harm if disclosed. Consequently, the court concluded that there was indeed a real and sensible risk that the confidential information would be misused, which impacted the admissibility of the expert evidence. The court held that the respondent’s expert evidence should not be admitted due to these concerns.

Given the findings, the court dismissed the application brought by GS Coal. The Federal Court ruled that the expert evidence provided by the respondent’s expert witness was inadmissible due to the risk of misuse of confidential information. As a result, GS Coal’s application to exclude the expert evidence was unsuccessful. The court’s decision was based on the protection of confidential information and the potential harm that could arise from its disclosure in the context of the proceedings.

Orders