Legend International Holdings v Taylor Aly Awaditijia (No. 3)
[2014] QLC 28
•15 August 2014
LAND COURT OF QUEENSLAND
CITATION: Legend International Holdings v Taylor Aly Awaditijia & Anor (No. 3) [2014] QLC 28 PARTIES: Legend International Holdings Inc
(applicant)v James W Taylor Aly Awaditijia
(respondent)and
Chief Executive, Department of Environment and Heritage Protection
(statutory party)FILE NO: EPA081-13 DIVISION: General Division PROCEEDING: Application for disclosure DELIVERED ON: 15 August 2014 DELIVERED AT: Brisbane HEARD AT: Written submissions PRESIDENT: CAC MacDonald ORDERS: 1. Within 28 days of the date of this order, the applicant is to provide to the respondent, in electronic or documentary form, the modelling results relied on by the applicant's expert (EIS Appendix N by Parsons Brinckerhoff) relating to the:
a. daily input and results files and monthly summary files for the simulation period of 113 years for:
· catchment rainfall
· inflows at Battle Creek Dam
· direct rainfall on Battle Creek Dam impoundment
· open water evaporation
· outflows from Battle Creek Dam
· storage volume Battle Creek Dam
· IQQM output inflows for Leichhardt River WRP (DERM, 2009) for Gunpowder Creek at Gunpowder (GS No 913006A)
· inflow sequences for waterholes 1 - 4 downstream of the dam - base case - no dam
· inflow sequences for waterholes 1 - 4 downstream - scenario 1 - 2,500 ML/a water demand
b. elevation v's area and elevation v's storage volume for
· Battle Creek Dam
· waterholes 1 - 4
2. Within 28 days of the date of this order, the applicant and the respondent are to deliver to the other a list of documents to discharge their duty of disclosure.
3. The applicant is to pay the respondent's costs of the general application filed on 17 June 2014.
CATCHWORDS: Practice and Procedure - Disclosure - whether documents sought "directly relevant" to issue in dispute - whether applicant on a "fishing expedition" - whether duty to disclose complied with - whether documents in existence - disclosure ordered for specific documents - UCPR r 211.
Practice and Procedure - Disclosure - disclosure by list - whether full disclosure oppressive - no evidence to support such claim - order for disclosure by list - UCPR r 214.
Costs - Disclosure - applicant largely successful - costs to "follow event" - costs award to applicant - Land Court Act 2000 s 34(1).
Environmental Protection Act 1994
Land Court Act 2000
Land Court Rules 2000
Uniform Civil Procedure Rules 1999Gibson v The Minister for Finance, Natural Resources and the Arts [2012] QSC 12 at [7]
Gregcarbil Pty Ltd v Backus [2013] QLC 46 at [137]
Legend International Holdings v Taylor Aly Awaditijia [2013] QLC 66
Moreton Bay Regional Council v Mekpine Pty Ltd [2014] QLAC 5SOLICITORS: Merman Legal for the applicant
Just Us Lawyers for the respondent
Background
This decision deals with an application by the respondent, Mr JW Taylor Aly Awaditijia, that the applicant, Legend International Holdings Inc, provide disclosure as detailed below at [10]. The substantive proceedings concern an objection lodged by the respondent to a draft environmental authority (EA) (mining lease) issued by the Chief Executive, Department of Environment and Heritage Protection (the statutory party) under the provisions of the Environmental Protection Act 1994, in respect of a phosphate mine to be developed by the applicant.
The respondent's objection was particularized by particulars filed on 27 August 2013[1] and further particulars filed on 25 February 2014. It is evident from the particulars and other documents filed in this matter that the applicant proposes to construct a dam on Battle Creek for the purposes of supplying water to the mine.
[1]The particulars filed on 27 August 2013 were the subject of a strike-out application brought by the applicant. In my decision dated 20 December 2013 (Legend International Holdings v Taylor Aly Awaditijia [2013] QLC 66) I ordered that paragraphs 1, 8, 9 and 10 of the particulars be struck out. Paragraphs 2, 3, 4, 5, 6 and 7 of the particulars were not struck out.
Paragraph 6 of the particulars filed on 27 August 2013 asserts that "it is therefore likely that a dam on Battle Creek will result in significant loss of water flow downstream that will have a detrimental effect on its ecology". In paragraph 9 of the further particulars filed on 25 February 2014, the respondent said that, -
"In respect to paragraph 6 of the Particulars of Objection, the aspects of the 'ecology' of Battle Creek that will be affected by the loss of water flow downstream from Battle Creek Dam are habitat loss, habitat modification, habitat degradation (from weed invasion, pigs/cattle, potential deterioration of water quality and flow regime) of native flora and fauna. It will affect all aquatic native flora and fauna along Battle Creek both in the inundation area and downstream from the Battle Creek Dam and is not confined to the impact upon burrowing frogs."
Statements of evidence by Mr DM Sargent, a hydrologist, and Mr PA Fox, a terrestrial ecologist, have been filed by the respondent.
Mr Sargent made the following observations about the proposed Battle Creek Dam[2] -
[2] Paragraph 2.2, statement of evidence of Mr DM Sargent filed 16 May 2014.
"The catchment area of Battle Creek at the dam site is 153 km². Parsons Brinckerhoff's report states that a reliable water supply of 2,500 ML per annum can be provided with a dam with a storage capacity of 10,000 ML.
PB developed a water balance model using IQQM, a widely used computer model, suitable for this purpose. This was based on a daily time step using estimated rainfall and evaporation data obtained through the Queensland Department of Natural Resources and Mines (DNRM) SILO database, and the recorded flow data for Gunpowder Creek.
The following assumptions used in the Parsons Brinckerhoff analysis are relevant to the current objection:
a.Dam inflows were estimated from recorded flows at the streamflow gauging station No 913006A on Gunpowder Creek based on the ratio of the catchment area at the dam (153 km²) to that at the gauging station (2,427 km²) plus 5% to account for relatively higher rainfall in the upper part of the catchment.
b. Evaporation is set to zero on days of rainfall.
c.No explicit allowance for the currently perceived impacts of climate change over the life of the mine.
d. Seepage loss from the dam is assumed to be negligible.
The following operating rules were adopted in respect of environmental flow releases:· for inflows less than or equal to 2 ML/d, release equal to inflow;
· for inflows greater than 2 ML/d, release of 2 ML/d"
The draft EA issued by the statutory party contains the following condition -
"Battle Creek Dam water release
G9 Natural inflows to Battle Creek Dam are determined by areally adjusting streamflows measured at gauging station GS1. Natural inflows to Battle Creek Dam are released to maintain storage volume of downstream water holes. Releases of waters from Battle Creek Dam, at release point WRP1, identified in Schedule G - Table 2 (Battle Creek Dam Controlled Discharge Point), and at a flow rate commensurate with inflow measured at GS1, must occur within 24 hours:a.for inflows to Battle Creek Dam ≤ 2 ML per day, a water volume equivalent to inflow volume must be released from Battle Creek Dam; and
b.for inflows to Battle Creek Dam > 2 ML per day, 2 ML per day must be released from Battle Creek Dam."
Mr Sargent said, in his statement of evidence, that he had a number of concerns with the water balance modelling on which the draft EA for the proposed mine relies[3]. He summarized his conclusions as follows[4]:
[3] Paragraph 5, statement of evidence of Mr DM Sargent.
[4] Paragraph 6, statement of evidence of Mr DM Sargent.
·I have concerns that the dam inflows have been overestimated based on: the assumption that dam inflows will be proportionate to those at the downstream gauging station; that the assumed increase of 5% due to higher rainfall in the dam catchment is not justified; that no account has been taken that some 15% of the dam catchment is limestone leading to lower surface water runoff; that the assumption regarding zero evaporation from the water storage on rain days is non-conservative; and that the assumption of negligible seepage from the impoundment does not take account of the presence of limestone in its upper reaches.
·If the actual dam inflows are lower than those estimated, the operator may not be able to maintain the required environmental flow releases. This will result in the inability to maintain the water levels in the downstream waterholes, which would result in ecological impacts.
·That the analysis is deficient in that it has not tested the significant assumptions by means of sensitivity testing.
·The current conditions in the EA regarding the downstream release from the dam are not sufficient to ensure compliance in this regard, and I recommend that DEHP considers strengthening the reporting requirements as outlined in section 5 hereof.
Mr Sargent also said that access to the modelled daily flows had been sought through the applicant's legal representatives in order to address the sensitivity aspects of the issues raised. However, the data were not made available[5].
[5] Paragraph 7, Mr Sargent's statement of evidence.
In his statement of evidence, Mr Fox referred to the uncertainty expressed by Mr Sargent as to the accuracy of the proposed water release flows and said[6],
"if environmental flows are not released to adequately provide enough water to the downstream environment, then I believe this will have a detrimental impact on the species which rely on the semi-permanent and permanent pools downstream of the dam wall".
[6] Statement of evidence of Mr P Fox, section 4, EA condition G9, page 12.
It appears that Mr Sargent emailed the respondent's solicitors asking to be provided with some of the modelling results relied on by the applicant in their analysis (Environmental Impact Statement (EIS) Appendix N by Parsons Brinckerhoff) and that request was passed on to the applicant's solicitor, Mr Chay. Mr Chay replied saying that the respondent was seeking to "go fishing" for a new ground of objection, which was a total waste of time and expense for all parties and contrary to the legislative framework which prevents the respondent seeking to introduce new objections after the relevant date for close of objections. Mr Chay concluded that letter by saying that his client was not prepared to incur the unnecessary expense of sourcing the data from its external consultants to locate and provide the data and disclose it to the respondent[7]. Further correspondence ensued between the parties' solicitors but no disclosure has been made as sought.
[7]Letter from Merman Legal to Just Us Lawyers dated 17 April 2014; Annexure CSH 6 to the affidavit of CS Hardie filed 17 June 2014.
The respondent subsequently brought this application for orders for disclosure as follows -
1.That the applicant provide the respondent in electronic or documentary form the modelling results relied upon by the applicant's expert (EIS Appendix N by Parsons Brinckerhoff) relating to the:
a. daily input and result files and monthly summary files for the simulation period of 113 years for:
· catchment rainfall
· inflows at Battle Creek Dam
· direct rainfall on Battle Creek Dam impoundment
· open water evaporation
· outflows from Battle Creek Dam
· storage volume Battle Creek Dam
·IQQM output inflows for Leichhardt River WRP (DERM, 2009) for Gunpowder Creek at Gunpowder (GS No 913006A)
·inflow sequences for waterholes 1 - 4 downstream of the dam - base case - no dam
·inflow sequences for waterholes 1 - 4 downstream - scenario 1 - 2,500 ML/a water demand
b. elevation v's area and elevation v's storage volume for
· Battle Creek Dam
· waterholes 1 - 4
2. In the alternative to Order 1, the applicant file and serve an affidavit on the respondent stating either that the above data does not exist and has never existed or setting out the circumstances in which the above data has ceased to exist or has passed out of the possession or control of the applicant.
3. That within 28 days of the date of this order, the parties produce a list of documents to discharge their duty of disclosure as provided by r 211 of the Uniform Civil Procedure Rules 1999.
4. The applicant pay the respondent's costs of this application.
Legislative Provisions
Rule 4 of the Land Court Rules 2000 (the Rules)provides that -
"4 Application of Uniform Civil Procedure Rules
(1) If these rules do not provide for a matter in relation to a proceeding in the court and the Uniform Civil Procedure Rules 1999 (the uniform rules) would provide for the matter, the uniform rules apply in relation to the matter with necessary changes.
(2)For subrule (1), an originating process under these rules is to be treated as if it were a claim under the uniform rules."
Rule 13 of the Rules provides that Chapter 7 of the Uniform Rules applies, with necessary changes, to disclosure in relation to a proceeding in the Court.
Rule 211 of the Uniform Rules provides that -
"Duty of disclosure
(1) A party to a proceeding has a duty to disclose to each other party each document -
(a) in the possession or under the control of the first party; and
(b)directly relevant to an allegation in issue in the pleadings; and
(c)if there are no pleadings – directly relevant to a matter in issue in the proceeding.
Note -
Under the Acts Interpretation Act 1954, section 36 -
document includes -
(a) any paper or other material on which there is writing; and
(b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for a person qualified to interpret them; and
(c) any disc, tape or other article or any material from which sounds, images, writings or messages are capable of being produced or reproduced (with or without the aid of another article or device).
(2) The duty of disclosure continues until the proceeding is decided.
(3)An allegation remains in issue until it is admitted, withdrawn, struck out or otherwise disposed of."
Consideration of Issues
The applicant has refused to make disclosure on a number of grounds. The first was that the respondent had sought an order for disclosure before Land Court Member Mr Cochrane and that application was refused on 29 January 2014.
I do not accept that that submission reflects accurately the relevant exchange that occurred between Mr Cochrane and the parties on 29 January 2014. It appears that counsel for the respondent had handed up draft orders for consideration by Mr Cochrane. Mr Cochrane indicated that he did not want to embark on disclosure involving exchange of millions of pages of documents and asked Mr Chay whether the EIS (which, it had already been agreed, would be made available to the respondent), contained a full copy of, inter alia, any hydrological studies that had been carried out in respect of the proposed mining site. Mr Chay said that it did. Mr Cochrane then enquired whether there were any other reports lurking in the woodwork that might not have been disclosed. Mr Chay replied that if the supplementary environment statement were included, that was correct[8]. Subsequently, Mr Cochrane noted that Order 2 [of the draft Orders handed up by counsel for the respondent] related to disclosure and asked counsel for the respondent what she expected to achieve by the proposed order. Counsel said that she thought that the proposed order may have been overtaken by events relating to the provision of material, particularly since Mr Cochrane had raised with Mr Chay that there were no other documents in existence. Mr Cochrane said he was not particularly inclined to order disclosure that day and noted that the duty of disclosure was ongoing[9].
[8] Transcript, 29 January 2014, T 1-10, 31-44; T 1-11, 1-6.
[9] Transcript, 29 January 2014, T 1-16; 1-18.
Given the exchange that occurred, it is clear that Mr Cochrane did not refuse to order disclosure. The respondent's draft order was not pursued because of the assurance given by Mr Chay. It has subsequently emerged that the calculations underlying the Parsons Brinckerhoff report (Appendix D to Appendix N of the EIS) are not set out in that report. While that is not a criticism of Parsons Brinckerhoff, those calculations do appear to be relevant to the issues between the parties, given the doubts expressed by Mr Sargent.
Mr Chay also submitted that as at 29 January 2014 nothing concerning hydrology of inflows into the proposed Battle Creek Dam was included within the respondent's objection. That issue was first raised in the statement of evidence of Mr Sargent, he said.
Further, Mr Chay submitted that:
a. the matter of calculation and modelling of inflows, the subject of the hydrology report, now purported to be relied upon by the respondent in this objection is in reality an attempt to go fishing in an effort to introduce new objections;
b. if it is not, then the terms of the environmental authority make the matter irrelevant to this objection.
Mr Chay submitted that the effect of condition G9 of the draft EA is that:
a. what flows into the dam during one day, must then be released the next day except as provided in b. below;
b. where the amount flowing in is more than 2 ML only 2 ML need be released.
Mr Chay said that the question for the applicant, when inflows occur, is whether there is enough inflow so that some water is available for retention for later mining purposes. It would only be if the applicant flouted the law and embarked upon a premeditated and sustained enterprise of non-compliance with condition G9 that it could ever be the case that the environmental flows would not occur.
Finally, Mr Chay submitted, it had not been suggested at the 29 January 2014 hearing nor has it ever been suggested that the applicant make disclosure of each and every note, memorandum, calculation, data input etc that would have been produced by every person preparing a report for the EIS. That would result in the "millions of pages" referred to by Mr Cochrane which was entirely unjustified in a matter such as this.
The central issue for the Court to consider is the relevance of the documents sought by the respondent to the issues identified by the respondent in the objection and particulars of objection. Rule 211(1)(c) of the Uniform Rules provides that the documents sought must be "directly relevant to a matter in issue in the proceeding". In Gibson v The Minister for Finance, Natural Resources and the Arts, Henry J said - [10]
"The requirement of “direct” relevance contemplates a document tending to prove or disprove an allegation in issue. In Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants and Bars Pty Ltd Pincus JA described this as a different obligation to that laid down by Brett LJ in Compagnie Financiere Du Pacifique v Peruvian Guano Co so that it is not enough that is reasonable to suppose a document may directly or indirectly enable an applicant to advance the applicant’s case or damage an opponent’s case. As Pincus JA observed in Mercantile Mutual mere suspicion is not enough." (Citations omitted).
[10] [2012] QSC 012 at [7].
Mr Sargent's statement of evidence raises questions as to the accuracy of the calculations and assumptions underlying the water balance modelling on which the draft EA relies. Those questions appear to be legitimately raised, for the reasons given by Mr Sargent. I do not accept Mr Chay's submission that the queries raised by Mr Sargent as to the accuracy of the estimated inflows into the dam raise a new objection or a new issue. It is clear from paragraph 6 of the particulars of objection and paragraph 9 of the further particulars, set out at [3] above, that the respondent has maintained that it is likely that a dam on Battle Creek will result in a significant loss of water flow downstream which will have a detrimental effect on its ecology. One factor in determining whether or not there will be sufficient water flow downstream to preserve the ecology, following the construction of the dam, will be how much water flows into the dam. This is because the volume of releases from the dam appears to be directly related to the volume of the inflows. If the calculation of the inflows into the dam by Parsons Brinckerhoff is incorrect, condition G9 may not ensure a sufficient environmental flow downstream of the dam.
While it is correct, as Mr Chay submitted, that condition G9 requires that, where inflows are equal to or less than 2 ML per day, a volume equivalent to the inflow volume must be released, it is also the case that where the inflow exceeds 2 ML per day, only 2 ML per day will be released from the dam. Thus, after construction of the dam, it appears that less water will be released on the days when the inflow exceeds 2 ML per day than would be available downstream if the dam were not constructed. There is therefore the potential that the loss in water flow downstream could have a detrimental effect on the stream ecology, as particularized in paragraph 6 of the particulars and paragraph 9 of the further particulars. Whether that is so will ultimately be a matter of evidence.
In my opinion the documents sought are directly relevant to the matters in issue in the proceeding, that is they will be relevant to proof of the issue whether, after the construction of the dam, the environmental outflows from the dam will result in significant loss of water flow that will have a detrimental effect on the ecology of Battle Creek downstream of the dam.
Mr Sargent suggested that an effect of any over-estimation of the inflows into the dam may be that the dam operator is conflicted in respect of complying with the release condition on the one hand and having sufficient water for the mining operations on the other[11].
[11] Paragraph 5.2 of Mr DM Sargent's statement of evidence filed 16 May 2014.
I do not consider that this is a proper ground for ordering disclosure. As Mr Chay submitted, this Court will not assume, in the absence of any evidence, that proponents of mining operations will break the law. Rather it is to be assumed that the conditions imposed in the draft EA will be complied with[12].
[12] See Gregcarbil Pty Ltd v Backus [2013] QLC 46 at [137].
The respondent has sought orders for disclosure by provision of certain documents, or alternatively that the applicant file an affidavit as to the existence of the documents and/or the circumstances in which they ceased to exist or passed out of the possession or control of the applicant. Rule 223 of the Uniform Rules provides that -
"Court orders relating to disclosure
(1)The court may order a party to a proceeding to disclose to another party a document or class of documents by –
(a)delivery to the other party in accordance with this part a copy of the document, or of each document in the class; or
(b) producing for the inspection of the other party in accordance with this part the document, or each document in the class.
(2) The court may order a party to a proceeding (the first party) to file and serve on another party an affidavit stating –
(a)that a specified document or class of documents does not exist or has never existed; or
(b) the circumstances in which a specified document or class of documents ceased to exist or passed out of the possession or control of the first party.
(3)The court may order that delivery, production or inspection of a document or class of document for disclosure –
(a) be provided
(b) not be provided; or
(c) be deferred.(4)An order mentioned in subrule (1) or (2) may be made only if -
(a) there are special circumstances and the interests of justice require it; or
(b) it appears there is an objective likelihood -
(i) the duty to disclose has not been complied with; or
(ii) a specific document or class of documents exists or existed and has passed out of the possession or control of a party.
(5)If, on an application for an order under this rule, objection is made to the disclosure of a document (whether on the ground of privilege or another ground), the court may inspect the document to decide the objection."
While rr 223(1)(a) and (2) enable the Court to make orders of the type sought by the respondent, it is to be observed that r 223(4) provides that such orders may only be made in certain circumstances. No submission has been made that this is a case where subrule (4)(a) applies. Subrule 4(b) therefore appears to be the applicable provision. That is, before making the orders sought, I must be satisfied that there is an objective likelihood -
(i)that the duty to disclose has not been complied with; or
(ii) that the specified document exists or existed and has passed out of the possession or control of a party.
I am satisfied that it is likely that documents (as defined in r 211) of the type sought were brought into existence for the purposes of the analysis undertaken by Parsons Brinckerhoff. The applicant has had the opportunity to make submissions in respect of this disclosure application and has not stated that the documents do not exist or are not under its control. Mr Sargent's statement of evidence points to the existence of such documents and, in his letter to the respondent’s solicitor dated 17 April 2014, Mr Chay effectively conceded that the data exists and is under the control of the applicant, when he said that his client was not prepared to incur the unnecessary expense of sourcing the data from its external consultants[13]. Accordingly, I consider that there is an objective likelihood that the duty to disclose has not been complied with and the applicant should be ordered to disclose the documents by delivery to the respondent.
[13]Letter from Merman Legal to Just Us Lawyers dated 17 April 2014; Annexure CSH6 to the affidavit of CS Hardie filed 17 June 2014.
As stated above, the respondent has also sought an order, pursuant to r 223(2), that the applicant file and serve on the respondent an affidavit stating that the data does not exist and has never existed or setting out the circumstances in which the data has ceased to exist or has passed out of the possession or control. Neither party has adduced any evidence or made any submission to the effect that the documents do not exist, have ceased to exist or have passed out of the possession or control of the applicant. Accordingly I am not prepared to order the applicant to file and serve the affidavit sought as I am not satisfied that there is an objective likelihood that such documents do not exist, have ceased to exist or passed out of the control of the applicant.
Mr Chay has also submitted that an order for full disclosure would result in "millions of pages" and this was entirely unjustified in this case.
The respondent is not seeking "full disclosure" in this part of the application but rather is seeking disclosure in relation to a particular issue by delivery of clearly identified documents. In any event, no evidence has been given to support the assertion that full disclosure would result in millions of pages of documents. In the absence of such evidence, I will make the order sought.
The respondent has also sought an order that the parties make disclosure, within 28 days of the date of order, by producing a list of documents.
The parties to a proceeding in this Court are under an ongoing duty to provide disclosure[14]. Rule 214(1) of the Uniform Rules provides -
"214 Disclosure by delivery of list of documents and copies
(1)Subject to rules 216 and 223, a party to a proceeding performs the duty of disclosure by -
(a) delivering to the other parties in accordance with this part a list of the documents to which the duty relates and the documents in relation to which privilege from disclosure is claimed (the list of documents); and
(b) at a party's request, delivering to the party copies of the documents mentioned in the list of documents, other than the documents in relation to which privilege from disclosure is claimed."
[14] Rule 211(2), Uniform Civil Procedure Rules 1999.
The applicant's submission that an order for full disclosure would, in effect, be oppressive, is also relevant to this part of the application. However, as stated above, in the absence of any evidence supporting the submission, I am not prepared to refuse the order.
The respondent has also sought an order that the applicant pay the respondent's costs of this application.
Section 34(1) of the Land Court Act provides that -
"34. Costs
(1) Subject to the provisions of this or another Act to the contrary, the Land Court may order costs for a proceeding in the court as it considers appropriate.
(2)If the court does not make an order under subsection (1), each party to the proceeding must bear the party’s own costs for the proceeding."
In Moreton Bay Regional Council v Mekpine Pty Ltd, the Land Appeal Court said[15]:
"It has been held on many occasions that the discretion to award costs granted by s 34 is unfettered but that the discretion is to be exercised judicially, that is for reasons that may be explained and substantiated. However it has also been recognized by the Land Appeal Court that although the discretion to award costs is unfettered, the rule that costs follow the event may inform the exercise of the discretion granted under s 34(1), "as there is justice in that approach. It protects those put to unnecessary and substantial expense at the behest of others." (Citations omitted)
[15] [2014] QLAC 5 at [12].
The respondent has been largely successful in this application and no good reason has been put forward for not awarding costs to the respondent. I consider that in those circumstances the applicant should pay the respondent's costs of the general application filed on 17 June 2014.
Other Matter
I have reached my conclusions in relation to this application without the need to rely on an additional document filed by the applicant on 11 July 2014 entitled Supplementary Applicant’s Submissions in Respect of Discovery. Filing of supplementary submissions was not envisaged by the orders I made on 20 June 2014 and the respondent has objected to the applicant filing supplementary submissions. The applicant filed the supplementary submissions because it says the respondent’s reply dated 10 July 2014 contained new material beyond the scope of the original objections, as particularized, filed by the respondent. As I have not relied on the material in the respondent’s reply which was objected to by the applicant, it is unnecessary for me to rule on the issue of whether the applicant’s supplementary submissions were properly filed.
ORDERS:
1.Within 28 days of the date of this order, the applicant is to provide to the respondent, in electronic or documentary form, the modelling results relied on by the applicant's expert (EIS Appendix N by Parsons Brinckerhoff) relating to the:
a. daily input and results files and monthly summary files for the simulation period of 113 years for:
·catchment rainfall
·inflows at Battle Creek Dam
·direct rainfall on Battle Creek Dam impoundment
·open water evaporation
·outflows from Battle Creek Dam
·storage volume Battle Creek Dam
·IQQM output inflows for Leichhardt River WRP (DERM, 2009) for Gunpowder Creek at Gunpowder (GS No 913006A)
·inflow sequences for waterholes 1 - 4 downstream of the dam - base case - no dam
·inflow sequences for waterholes 1 - 4 downstream - scenario 1 - 2,500 ML/a water demand
b. elevation v's area and elevation v's storage volume for
·Battle Creek Dam
·waterholes 1 - 4
2.Within 28 days of the date of this order, the applicant and the respondent are to deliver to the other a list of documents to discharge their duty of disclosure.
3.The applicant is to pay the respondent's costs of the general application filed on 17 June 2014.
CAC MacDONALD
PRESIDENT OF THE LAND COURT
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