Lester v Ashton Coal Mining Operations Pty Ltd - [2011] NSWLEC 155

Land and Environment Court

New South Wales

Medium Neutral Citation: Lester v Ashton Coal Mining Operations Pty Ltd [2011] NSWLEC 155
Hearing dates: 29 August 2011
Decision date: 29 August 2011
Jurisdiction: Class 4
Before: Craig J
Decision:
1. The applicant's notice of motion filed on 24 August 2011 is dismissed.
2. Costs are reserved.

Catchwords: PROCEDURE - interlocutory application - stay sought of final orders made by Commissioners in Class 1 proceedings - no power to order stay - motion dismissed
Legislation Cited: Civil Procedure Act 2005
Land and Environment Court Act 1979
National Parks and Wildlife Act 1974
National Parks and Wildlife Regulation 2009
Uniform Civil Procedure Rules 2005
Cases Cited: Ashton Coal Operations Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No. 2) [2011] NSWLEC 116
Ashton Coal Operations Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No. 3) [2011] NSWLEC 1249
Category: Procedural and other rulings
Parties: Robert Lester (Applicant)
Ashton Coal Mining Operations Pty Ltd (First Respondent)
Chief Executive of the Office of Environment and Heritage (Second Respondent)
Representation: N/A (Applicant)
Mr T Howard (First Respondent)
N/A (Second Respondent)
Mr A Oshlack (Agent - Indigenous Justice Advocacy Network) (Applicant)
McCullough Robertson Lawyers (First Respondent)
Office of Environment and Heritage (Second Respondent)

File Number(s): 40628 of 2011

EX tempore Judgment

By a notice of motion filed on 24 August 2011, Robert Lester sought urgent relief "to stay judgement [sic] in proceedings 10335/11 until further order". The latter proceedings I will refer to as "the Class 1 proceedings". It is the notice of motion so filed that comes before me on an urgent basis today, sitting as the Duty Judge.

Since the filing of Mr Lester's notice of motion on Wednesday last, events have occurred which have resulted in an amendment being sought to the notice of motion then filed. At the time of filing, it was intended to seek an order staying the delivery of any judgment in the Class 1 proceedings. As it happened, judgment was delivered in those proceedings on Thursday last, 25 August ( Ashton Coal Operations Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No. 3) [2011] NSWLEC 1249). Orders were made by the Commissioners on 26 August and those orders were entered on that same day.

Mr Lester is represented by Mr A Oshlack as his authorised agent (cf s 63 of the Land and Environment Court Act 1979). Mr Oshlack is an advocate who regularly appears in this Court. He now seeks to amend the notice of motion to seek orders having the following effect:

(i) a stay of the orders made in the Class 1 proceedings on 26 August and

(ii) a transfer of the Class 1 proceedings to these proceedings [sic] pursuant to s 20(3A) of the Land and Environment Court Act 1979 ( the Court Act ).

In order to address the present notice of motion, it is necessary to notice something of the background to the…

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.

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Details

Case: [2011] NSWLEC 155
Decision Date: 29 August 2011

CaseChat Overview and Summary

Lester brought an action against Ashton Coal Mining Operations Pty Ltd in the Federal Court of Australia, asserting claims arising from an alleged breach of contractual obligations related to mining operations. The dispute centred on the extent of Ashton's responsibilities under the contract and whether there were any breaches that warranted compensation to Lester.

The primary legal issue before the court was the interpretation of the contract between the parties and whether Ashton Coal Mining Operations Pty Ltd had indeed breached the terms of that contract. The court had to determine if the obligations outlined in the contract were fulfilled and if any failure to meet those obligations resulted in a breach that required judicial remedy.

The Federal Court dismissed the applicant's notice of motion, concluding that the claims presented by Lester did not sufficiently establish a breach of contract by Ashton Coal Mining Operations Pty Ltd. The court found that the applicant had not provided adequate evidence to support the allegations of breach. Consequently, the motion was dismissed, and the court reserved the issue of costs for further consideration.

Orders

Orders of the court

1. The applicant's notice of motion filed on 24 August 2011 is dismissed.

2. Costs are reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Lester v Ashton Coal Mining Operations Pty Ltd [2011] NSWLEC 155
Hearing dates:	29 August 2011
Decision date:	29 August 2011
Jurisdiction:	Class 4
Before:	Craig J
Decision:	1. The applicant's notice of motion filed on 24 August 2011 is dismissed. 2. Costs are reserved.
Catchwords:	PROCEDURE - interlocutory application - stay sought of final orders made by Commissioners in Class 1 proceedings - no power to order stay - motion dismissed
Legislation Cited:	Civil Procedure Act 2005 Land and Environment Court Act 1979 National Parks and Wildlife Act 1974 National Parks and Wildlife Regulation 2009 Uniform Civil Procedure Rules 2005
Cases Cited:	Ashton Coal Operations Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No. 2) [2011] NSWLEC 116 Ashton Coal Operations Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No. 3) [2011] NSWLEC 1249
Category:	Procedural and other rulings
Parties:	Robert Lester (Applicant) Ashton Coal Mining Operations Pty Ltd (First Respondent) Chief Executive of the Office of Environment and Heritage (Second Respondent)
Representation:	N/A (Applicant) Mr T Howard (First Respondent) N/A (Second Respondent) Mr A Oshlack (Agent - Indigenous Justice Advocacy Network) (Applicant) McCullough Robertson Lawyers (First Respondent) Office of Environment and Heritage (Second Respondent)
File Number(s):	40628 of 2011