Hancock Coal Pty Ltd v Kelly (No. 2)

[2013] QLC 58

LAND COURT OF QUEENSLAND

CITATION:

Hancock Coal Pty Ltd v Kelly & Ors (No. 2) [2013] QLC 58

PARTIES:

Hancock Coal Pty Ltd
(applicant)

v.

Kathryn Kelly, Paul and Janeice Anderson, Coast and Country Association of QLD Inc, Patricia Julien of Mackay Conservation Group, Fiorella Paola Cassoni and Bruce and Annette Currie
(objectors)

Chief Executive, Department of Environment and Heritage Protection
(Statutory Party)

FILE NOs:

MRA082-13

EPA083-13

DIVISION:

General Division

PROCEEDING:

Application to exclude evidence

DELIVERED ON:

16 September 2013 [Ex tempore]

DELIVERED AT:

HEARD ON:

Brisbane

16 September 2013

HEARD AT:

Brisbane

MEMBER:

PA Smith

ORDERS:

1.    That Document URS 2012-DOC ID AH027 Appendix D be received into evidence.

2.    That the question of weight to be afforded to the document URS 2012-DOC ID AH027 Appendix D be deferred until the making of submissions.

CATCHWORDS:

EVIDENCE — expert report — question of relevance and reliance — report not exchanged as part of orders regarding expert evidence

Land Court Act 2000

APPEARANCES:

Mr Clothier of Queens Counsel and Mr A Pomerenke of Counsel, for the applicant

Ms Kathryn Kelly, self-represented objector

Mrs Janeice Anderson, self-represented objector

Mr Finanzio of Senior Counsel, Dr McGrath of Counsel and Mr Watters of Counsel, for the objector Coast and Country Association of QLD Inc

Ms Fiorella Paola Cassoni, self-represented objector

Mr Bruce Currie, self-represented objector

Mr Loos of Counsel for the Statutory Party

SOLICITORS:

Allens for the applicant
Environmental Defenders Office (QLD) Inc for the objector Coast and Country Association QLD Inc
Legal Services, Department of Environment and Heritage Protection for the Statutory Party

1. There has been an objection brought by Ms Cassoni against the receipt into evidence of a document referred to as URS 2012-DOC ID AH027, Appendix D, in these proceedings. 

2. To summarise the position of Ms Cassoni, which is supported by three pages of typed submissions, the document is alleged to be in effect an expert report and as such it did not meet the time tabling nor the other orders made in these proceedings with respect to the exchange of expert reports and the meeting of experts by various parties and preparation of joint reports. 

3. The applicant’s position is that the document complained of, forms part of the Environmental Impact Statement (EIS) material and is tendered to the Court as part of that EIS process. It is therefore claimed to be both admissible and a document on which this Court can rely.

4. The position of Coast and Country Association Qld Inc is that whilst effectively agreeing with the bulk of the submissions by the applicant, that this matter should not be determined until later in the proceedings, but that the report should be received at this time for the purposes of evidence and cross-examination and the like. 

5. The position of the Statutory Party is that it is possible to rule on the formal receipt into evidence of the material at this stage but to defer any decision as to the weight to be given to such material until later in the proceedings. 

6. It goes without saying that in the context of this matter there is a very large amount of material which I have not had the opportunity to come to grips with as yet, and which I am sure I will be taken to in great detail throughout the course of these proceedings. That is the reason this is being conducted as an electronic hearing, to deal with the bulk of evidence. As such, I have not had the opportunity to pre-read the document that is being spoken of, and the concerns raised by all of the parties. However, I do understand that the material does form part of the EIS material for the application. 

7. On that basis, I agree with the submissions made by Mr Loos that in light of s 7 of the Land Court Act 2000, this would be a document that would normally be received into evidence by this Court.

8. Even though that answers the main thrust of the technical nature of Ms Cassoni’s argument, it does not deal with the substantive nature of the argument. That is, importantly: what weight should be given to this document? Due to my lack of detailed knowledge of the material and due to the importance that the material clearly has, not only to Ms Cassoni but to other parties, I will defer ruling on the weight to be given to this document until the conclusion of the hearing. I encourage each of the parties to give formal written submissions as to what weight should be applied to this document in light of the ruling that I have made.

Orders

1.        That Document URS 2012-DOC ID AH027 Appendix D be received into evidence.

2.That the question of weight to be afforded to the document URS 2012-DOC ID AH027 Appendix D be deferred until the making of submissions.

P A SMITH

MEMBER OF THE LAND COURT