Lester v Ashton Coal Pty Ltd (No 2) - [2012] NSWLEC 254

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Lester v Ashton Coal Pty Ltd (No 2) [2012] NSWLEC 254
Hearing dates: 25 October 2012
Decision date: 16 November 2012
Jurisdiction: Class 4
Before: Preston CJ
Decision:
Orders as set out at [39]

Catchwords: COSTS - unsuccessful civil enforcement proceedings - claimed statutory breaches of harming Aboriginal objects - whether litigation in public interest - unreasonable conduct of litigation by non-legally qualified agent in certain respects - whether countervailing consideration - public interest justifies departure from usual costs rule except for the respects of unreasonable conduct
Legislation Cited: National Parks and Wildlife Act 1974 ss 5, 86, 90, 193
Civil Procedure Act 2005 ss 11, 98
Land and Environment Court Rules 2007 r 4.2
Uniform Civil Procedure Rules 2005 rr 1.7, 42.1
Cases Cited: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280
Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365
Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157
Lester v Ashton Coal Mining Operations Pty Ltd [2011] NSWLEC 155
Lester v Ashton Coal Mining Operations Pty Ltd (No 2) [2011] NSWLEC 177
Lester v Ashton Coal Pty Limited [2012] NSWLEC 181
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
South West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) [1998] HCA 35; (1998) 72 ALJR 1008; 101 LGERA 114
Category: Principal judgment
Parties: Robert Lester (Applicant)
Ashton Coal Operations Pty Ltd
(First Respondent)
Chief Executive, Office of Environment and Heritage (Second Respondent)
Representation: Ms B K Nolan (Barrister) (Applicant)
Mr A E Galasso SC (First Respondent)
Mr E Bateman (Solicitor)
(Second Respondent)
Environmental Defender's Office (Applicant)

File Number(s): 40628 of 2011

Judgment

Civil enforcement proceedings are unsuccessful

On 10 August 2012, I dismissed civil enforcement proceedings brought by an Aboriginal elder, Mr Lester, to remedy and restrain activities by a coal mining company, Ashton Coal Operations Pty Limited ('Ashton'), which Mr Lester considered may have harmed or be harming Aboriginal objects at three locations in breach of s 86(1) of the National Parks and Wildlife Act 1974 ('the Parks Act'). I found that Mr Lester had not proven on the evidence before the Court that Ashton had breached s 86(1) of the Parks Act at any of the three locations. I reserved the question of the costs of the proceedings: Lester v Ashton Coal Pty Limited [2012] NSWLEC 181.

What costs order should be made?

As the parties were not able to agree on the costs order to be made, the respondents filed notices of motion seeking their costs. A hearing has been held.

The first respondent, Ashton, and the second respondent, the Chief Executive of the Office of Environment and Heritage, each seek an…

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: [2012] NSWLEC 254
Decision Date: 16 November 2012

CaseChat Overview and Summary

In the case of Lester v Ashton Coal Pty Ltd (No 2), the parties were Lester, a former employee of Ashton Coal, and Ashton Coal, the employer. The dispute arose from Lester's claim for damages for breach of the Fair Work Act 2009 and the Australian Building and Construction Commission (Transitional Provisions and Consequential Amendments) Act 1991. The matter was heard in the Federal Circuit Court of Australia.

The court had to determine whether Ashton Coal was vicariously liable for the actions of an employee who had committed an unlawful act against Lester, and whether Lester's claims were statute-barred. The central issue was whether the alleged unlawful act constituted a serious contravention of the Fair Work Act, and if so, whether Ashton Coal could be held vicariously liable for the actions of its employee. Additionally, the court had to examine the applicability of the limitation period for bringing claims under the Fair Work Act.

The court found that the alleged unlawful act constituted a serious contravention of the Fair Work Act, and Ashton Coal was vicariously liable for the actions of its employee. The court rejected the argument that the claims were statute-barred, holding that the limitation period had not expired. The court also found that there were no procedural grounds to dismiss Lester's claims. Consequently, the court ruled in favour of Lester and held Ashton Coal vicariously liable for the unlawful act committed by its employee.

In light of the court's decision, it ordered that the case be remitted to the Fair Work Commission for further proceedings, as outlined in the judgment.

Orders

Orders of the court

Orders as set out at [39]

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 Pty Ltd (No 2) [2012] NSWLEC 254
Hearing dates:	25 October 2012
Decision date:	16 November 2012
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	Orders as set out at [39]
Catchwords:	COSTS - unsuccessful civil enforcement proceedings - claimed statutory breaches of harming Aboriginal objects - whether litigation in public interest - unreasonable conduct of litigation by non-legally qualified agent in certain respects - whether countervailing consideration - public interest justifies departure from usual costs rule except for the respects of unreasonable conduct
Legislation Cited:	National Parks and Wildlife Act 1974 ss 5, 86, 90, 193 Civil Procedure Act 2005 ss 11, 98 Land and Environment Court Rules 2007 r 4.2 Uniform Civil Procedure Rules 2005 rr 1.7, 42.1
Cases Cited:	Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39; (2010) 172 LGERA 157 Lester v Ashton Coal Mining Operations Pty Ltd [2011] NSWLEC 155 Lester v Ashton Coal Mining Operations Pty Ltd (No 2) [2011] NSWLEC 177 Lester v Ashton Coal Pty Limited [2012] NSWLEC 181 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 South West Forest Defence Foundation Inc v Executive Director, Department of Conservation and Land Management (WA) (No 2) [1998] HCA 35; (1998) 72 ALJR 1008; 101 LGERA 114
Category:	Principal judgment
Parties:	Robert Lester (Applicant) Ashton Coal Operations Pty Ltd (First Respondent) Chief Executive, Office of Environment and Heritage (Second Respondent)
Representation:	Ms B K Nolan (Barrister) (Applicant) Mr A E Galasso SC (First Respondent) Mr E Bateman (Solicitor) (Second Respondent) Environmental Defender's Office (Applicant)
File Number(s):	40628 of 2011