Hume Coal Pty Ltd v Alexander (No 2)

[2012] NSWLEC 278

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hume Coal Pty Ltd v Alexander (No 2) [2012] NSWLEC 278

Hearing dates:

14 December 2012

Decision date:

14 December 2012

Jurisdiction:

Class 8

Before:

Craig J

Decision:

1.  The hearing of the proceedings is expedited.

2.  The Plaintiff and First and Second Defendants are to serve any further evidence upon which they propose to rely by 28 January 2013.

3.  The Plaintiff and First and Second Defendants are to serve evidence in reply by 11 February 2013.

4.  The matter is listed for hearing for two days commencing on Monday 18 February 2013.

5.  Direct that the Plaintiff file and serve an outline of its submissions by 4pm on Wednesday 13 February 2013.

6.  Direct that the Defendants file and serve an outline of their submissions by 4.00pm on Friday 15 February 2013.

7.  Costs reserved.

Catchwords:

PROCEDURE - expedition - proceedings under s 295 of the Mining Act 1992 - blockade to prevent implementation of exploration license - apparent interference with statutory entitlements - additional costs to miner occasioned by blockade - freedom of movement by landowners agreeing to exploration impaired by blockade - expedition granted

Legislation Cited:

Mining Act 1992

Cases Cited:

Hume Coal Pty Limited v Alexander [2012] NSWLEC 267

Category:

Interlocutory applications

Parties:

Hume Coal Pty Limited (Plaintiff)
Ross Alexander (First Defendant)
Margaret Anne Alexander (Second Defendant)

Representation:

C R Ireland (Plaintiff)
S J Chapple (Defendants)
Minter Ellison (Plaintiff)
Environmental Defenders Office (Defendants)

File Number(s):

81128 of 2012

EX TEMPORE Judgment

1. Hume Coal Pty Limited (Hume) has commenced proceedings in Class 8 of this Court's jurisdiction. The order that it seeks is an order pursuant to s 295 of the Mining Act 1992 to restrain what is said to be a blockade on a road or private access way which is preventing Hume from gaining access to an area over which it holds an exploration licence granted under the Mining Act. The land in question is located in the Southern Highlands of New South Wales.

1. An application for an interlocutory injunction was sought by Hume but that application was refused by Sheahan J on 7 December 2012 (Hume Coal Pty Limited v Alexander [2012] NSWLEC 267). Essentially it would appear that the application was refused on the basis that the relief sought on an interlocutory basis was in effect the final relief sought in the proceedings.

1. Hume now seeks an order that the hearing of the proceedings be expedited. It identifies a program for preparation of the matter for hearing with a view to a hearing date being fixed for February 2013.

1. Hume submits that expedition should be granted for three reasons. First, that it has an entitlement pursuant to the licence granted to it under the Mining Act to gain access to the land which is presently blockaded. On the evidence placed before me there would appear to be no doubt that the right of access for which it has negotiated provides access to the site over which exploration is sought, the undertaking of which is authorised by the licence that has been granted to it. The blockade, preventing access in accordance with the authority which Hume holds, is apparently occasioned by or carried out by a number of persons, including the defendants, who express their opposition to any form of mining exploration in the area to which the authority relates.

1. The second basis upon which Hume moves for expedition is that considerable costs are being incurred by it while the blockade continues. These costs are not only incurred as a result of the interruption to its exploration program generally, but also include costs associated with the provision of security services to Mr and Mrs Koltai over whose property the access way exists. Mr and Mrs Koltai have agreed to provide that access to enable mineral exploration to be undertaken.

1. The third basis upon which expedition is sought turns upon the affect which the blockade is having upon Mr and Mrs Koltai. Mr and Mrs Koltai, having entered into the access agreement with Hume, have, according to their evidence, been subject to severe curtailment of their liberty to move freely from their property to outside destinations and otherwise to move within the local community. According to that evidence, they have been ostracised and been subject to abuse by some of those maintaining the blockade. That evidence is presently uncontested. I accept it for the purpose of this interlocutory application. It is evidence of significance in determining the present application for expedition.

1. It is clear that the prospect of exploration for coal deposits in this area of the Southern Highlands has elevated the emotions of very many people. It would appear to be the emotional response of some that has resulted in the blockade which has been established to prevent Hume exercising what are arguably the legal rights which it has been granted. It seems to me that when one has regard to all three bases upon which Hume founds its application, it is appropriate that expedition be granted.

1. I place particular emphasis upon the impact that the present blockade has had upon Mr and Mrs Koltai. Moreover, I take account of the fact that the resolution of these proceedings, whatever it may be, is one that is likely to settle the very real emotive concerns that have motivated members of the community to take the action that they have. The sooner that the Court's decision on the claim agitated by Hume is made, then the greater the opportunity for harmony or, at least, cordial accommodation among members of the local community to resume.

1. Although expedition is not opposed, it has been pointed out by or on behalf of the defendants that if Hume was to give an undertaking that it would not carry out any work until the proceedings were resolved, then the blockade may be removed. While that submission has some superficial appeal there is no evidence before me to suggest that this would be the case. Further, I take into account the fact that Hume is seeking to exercise a right which the Mining Act would appear to have bestowed upon it.

1. In that circumstance it seems to me that an undertaking, or rather the absence of an undertaking, on behalf of Hume not to do anything pending the determination of proceedings is not a matter that I should weigh heavily in determining the application for expedition.

1. For these reasons I am disposed to order that the hearing of these proceedings be expedited. I will also give directions, agreed between the parties, that will ensure the matter is prepared for hearing at an early date.

Orders

1. The orders I make are as follows:

1.  The hearing of the proceedings is expedited.

2.  The Plaintiff and First and Second Defendants are to serve any further evidence upon which they propose to rely by 28 January 2013.

3.  The Plaintiff and First and Second Defendants are to serve evidence in reply by 11 February 2013.

4.  The matter is listed for hearing for two days commencing on Monday 18 February 2013.

5.  Direct that the Plaintiff file and serve an outline of its submissions by 4pm on Wednesday 13 February 2013.

6.  Direct that the Defendants file and serve an outline of their submissions by 4.00pm on Friday 15 February 2013.

7.  Costs reserved.

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