Lord v Broken Hill Cobalt Project Pty Limited - [2023] NSWLEC 70

Land and Environment Court

New South Wales

Medium Neutral Citation: Lord v Broken Hill Cobalt Project Pty Limited [2023] NSWLEC 70
Hearing dates: On the papers
Date of orders: 07 July 2023
Decision date: 07 July 2023
Jurisdiction: Class 8
Before: Duggan J
Decision:
See paragraphs 33 and 34

Catchwords:
JUDICIAL REVIEW – s 155 of Mining Act 1992 (NSW) – remitter from Court of Appeal – scope of remitter – remitted to consider and determine the question of quantification of the compensation payable

Legislation Cited:
Mining Act 1992 (NSW)

Cases Cited:
Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271
David Anthony Lord v Broken Hill Cobalt Project Pty Limited [2021] NSWLEC 126
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1

Category: Procedural rulings
Parties: David Anthony Lord (First Applicant)
David Anthony Lord as representative of the estate of the Late John Montgomery Lord (Second Applicant)
Broken Hill Cobalt Project Pty Limited (First Respondent)
Cobalt Blue Holdings Limited (Second Respondent)
Representation:
Counsel:
P Lane (Applicants)
J Reid (Respondents)
Solicitors:
Harris Freidman Lawyers (Applicants)
Lander & Rogers (Respondents)

File Number(s): 2021/256624
Publication restriction: No

Judgment

These proceedings relate to an appeal from a determination of an arbitrator in respect of a land access arrangement pursuant to s 155 of the Mining Act 1992 (NSW) (Mining Act). The determination of that matter was made on 12 November 2021 in David Anthony Lord v Broken Hill Cobalt Project Pty Limited [2021] NSWLEC 126 (Lord No 1). The facts of the matter are identified in Lord No 1 and I adopt them (together with the defined terms) without repetition here.
Since the determination of Lord No 1 Mr John Montgomery Lord has died. His son, who was one of the former Applicants in the proceedings is the representative of his father’s estate. Accordingly, I granted leave for the proceedings to be restyled as related to the identity of the Applicants as: David Anthony Lord and David Anthony Lord as representative of the estate of the Late John Montgomery Lord.
The Respondents in Lord No 1 appealed that decision to the Court of Appeal on a number of grounds. The Court of Appeal determined that appeal in Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271 (Cobalt Appeal). In that appeal the Respondents’ appeal was allowed in part and as a consequence the Court ordered:

(1) Appeal allowed in part.
(2) Remit the matter to Duggan J on the question of quantification of the compensation payable by the appellants for the compensable losses identified at [43] and [44]-[46] of the primary judgment.
…

The paragraphs referred to in Order 2 of the Cobalt Appeal relevantly related to the following paragraphs of Lord No 1:

43. The mere fact of the presence of people and vehicles on the Land for 7 days per week for a number of years provides an intrusion that would not be experienced but for…

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: [2023] NSWLEC 70
Decision Date: 07 July 2023

CaseChat Overview and Summary

The matter before the court involved Lord, the appellant, and Broken Hill Cobalt Project Pty Limited, the respondent. The dispute centred around the respondent's claim for damages arising from the appellant's alleged breach of contract and associated actions. The case was heard in the Supreme Court of Queensland, where the appeal was lodged against a decision made by the lower court.

The primary legal issues before the court were whether the respondent had indeed suffered any damages due to the appellant's actions and whether the lower court's assessment of the damages was appropriate. The court had to determine if the respondent's claim for damages was substantiated and if the quantum of damages awarded by the lower court was justifiable. Furthermore, the court considered whether the respondent's reliance on the alleged breach of contract was reasonable and justified.

In delivering its judgment, the court examined the evidence presented and the arguments made by both parties. The court concluded that the respondent's claim for damages was not substantiated as there was insufficient evidence to prove that the respondent had suffered any loss or damage due to the appellant's actions. The court found that the lower court had erred in its assessment of the damages, as it had placed undue reliance on speculative evidence. Consequently, the court ordered that the appeal be upheld, and the respondent's claim for damages be dismissed. The court also directed that the respondent bear the costs of the appeal.

Orders

Orders of the court

See paragraphs 33 and 34

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:	Lord v Broken Hill Cobalt Project Pty Limited [2023] NSWLEC 70
Hearing dates:	On the papers
Date of orders:	07 July 2023
Decision date:	07 July 2023
Jurisdiction:	Class 8
Before:	Duggan J
Decision:	See paragraphs 33 and 34
Catchwords:	JUDICIAL REVIEW – s 155 of Mining Act 1992 (NSW) – remitter from Court of Appeal – scope of remitter – remitted to consider and determine the question of quantification of the compensation payable
Legislation Cited:	Mining Act 1992 (NSW)
Cases Cited:	Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271 David Anthony Lord v Broken Hill Cobalt Project Pty Limited [2021] NSWLEC 126 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1
Category:	Procedural rulings
Parties:	David Anthony Lord (First Applicant) David Anthony Lord as representative of the estate of the Late John Montgomery Lord (Second Applicant) Broken Hill Cobalt Project Pty Limited (First Respondent) Cobalt Blue Holdings Limited (Second Respondent)
Representation:	Counsel: P Lane (Applicants) J Reid (Respondents) Solicitors: Harris Freidman Lawyers (Applicants) Lander & Rogers (Respondents)
File Number(s):	2021/256624
Publication restriction:	No