Lord v Broken Hill Cobalt Project Pty Ltd

[2024] NSWCA 305

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Lord v Broken Hill Cobalt Project Pty Ltd [2024] NSWCA 305

Hearing dates:

5 December 2024

Date of orders:

18 December 2024

Decision date:

18 December 2024

Before:

Ward P at [1]; Adamson JA at [124]; Preston CJ of LEC at [125]

Decision:

1.   Appeal dismissed with costs.

2.   Order the appellant to pay the respondent’s costs of the appeal.

Catchwords:

JUDGMENTS AND ORDERS – Remittal by Court of Appeal to Land and Environment Court – Scope of remitter – Where respondent sought to adduce further evidence on the remittal – Where primary judge refused to grant leave to adduce further evidence – Whether primary judge erred in law in refusing to admit further evidence – Appeal dismissed

APPEALS – Jurisdiction of appellate court – Remittal to Land and Environment Court – Construction of remittal order – Whether a question of law for purposes of s 57(1) of the Land and Environment Court Act 1979 (NSW)

Legislation Cited:

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Civil Procedure Act 2005 (NSW), s 62, Pt 6

Evidence Act 1995 (NSW)

Land and Environment Court Act 1979 (NSW), ss 21C, 57

Mining Act 1992 (NSW), Pt 3, s 155, Dictionary

Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 29.5 51.41, 51.53

Western Lands Act 1901 (NSW)

Cases Cited:

Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317

Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230

B&L Linings v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187

Broken Hill Cobalt Project Pty Ltd v Lord (2022) 254 LGERA 274; [2022] NSWCA 271

Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2017) 94 NSWLR 554; [2017] NSWCA 73

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22

ISPT Pty Ltd v Valuer General (2009) 165 LGERA 25; [2009] NSWCA 31

Kaluza v Repatriation Commission (2011) 280 ALR 621; [2011] FCAFC 97

Kudrynski v Orange City Council [2024] NSWCA 33

David Anthony Lord v Broken Hill Cobalt Project Pty Limited [2021] NSWLEC 126

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

Lord v Broken Hill Cobalt Project Pty Ltd [2024] NSWLEC 52

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) (No 2) [2015] NSWLEC 71

Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558; [2003] FCA 629

Peacock v Repatriation Commission (2007) 161 FCR 256; [2007] FCAFC 156

Perilya Broken Hill Ltd v Valuer-General (2015) 10 ARLR 235; [2015] NSWCA 400

Repatriation Commission v Nation (1995) 57 FCR 25; [1995] FCA 355

Road & Traffic Authority of New South Wales v Peak [2007] NSWCA 66

Smith v Comcare (2015) 65 AAR 288; [2015] FCAFC 24

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1; [2009] NSWCA 178

Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78; [1998] FCA 1605

Texts Cited:

P Herzfeld and T Prince, Interpretation (2nd ed, Thomson Reuters, 2020)

Category:

Principal judgment

Parties:

David Anthony Lord (First Appellant)
David Anthony Lord as representative of the Estate of the Late John Montgomery Lord (Second Appellant)
Broken Hill Cobalt Project Pty Ltd (First Respondent)
Cobalt Blue Holdings Ltd (Second Respondent)

Representation:

Counsel:
L Gyles SC and M Sherman (Appellants)
R Lancaster SC and J Reid (Respondents)

Solicitors:
Harris Freidman Lawyers (Appellants)
Lander & Rogers (Respondents)

File Number(s):

2024/00207840

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 8

Citation:

[2024] NSWLEC 52

Date of Decision:

20 May 2024

Before:

Duggan J

File Number(s):

2021/00256624

HEADNOTE

[This headnote is not to be read as part of the judgment]

In December 2022, the Court of Appeal made an order remitting to Duggan J in the Land and Environment Court the matter then before the Court (Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271) “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”. Within those paragraphs, Duggan J had awarded a lump sum payment per annum of $20,000 to Mr Lord for each Exploration Licences (EL) held by the Cobalt Entities for impacts on management likely to be caused by the prospecting operations of the Cobalt entities, and for damage to the surface of the land inherent in the carrying out of prospecting operations by the Cobalt entities, on farm land owned by Mr Lord. However, the primary judge did not ascribe a specific sum from the lump sum to the respective heads of loss, nor did the primary judge provide reasons as to why the lump sum was awarded on an annual basis for each EL. Thus, the function of the remitter was for the “… further consideration and the provision of additional reasons” as to the nature of the lump sum.

On 7 July 2023, her Honour determined that the scope of the remitter permitted the making of further submissions as to the quantification of the compensation payable for the compensable losses identified in the specified paragraphs. Mr Lord subsequently sought to rely on an affidavit sworn by him on 29 August 2023 (Lord Affidavit), which spoke to the impact of Cobalt’s activities on management decision making and inherent damage to the land caused by the prospecting operations. The primary judge ruled the Lord affidavit to be inadmissible.

Mr Lord sought leave to appeal from Duggan J’s refusal to admit the Lord Affidavit pursuant to s 57(1) of the Land and Environment Court Act 1979 (NSW).

Three issues arose for determination. First, whether leave to appeal was required. Second, whether the appeal is on a question of law. Third, whether, if an error on a question of law is established, the error was material to the determination

The Court held (Ward P, Adamson JA and Preston CJ of LEC agreeing), granting leave to appeal but otherwise dismissing the appeal with costs:

As to the first issue:

1. The challenge to the refusal to permit the Lord Affidavit to be adduced, which is an interlocutory decision, would require leave. However, the Lord Affidavit, if admitted, would have had relevance to the issues on the remitter, and its admission would, in combination with other evidence, have had a material effect on the final decision. Leave is therefore not required: [68]-[70] (Ward P); [124] (Adamson JA); [125] (Preston CJ of LEC).

   Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22, applied.

As to the second issue:

1. The primary judge’s construction of the remitter order is properly characterised as a question of law. Similarly, the question whether the primary judge failed to comply with s 155(6A) of the Mining Act 1992 (NSW), and there was therefore a constructive failure to exercise jurisdiction, is a question of law: [85]-[90] (Ward P); [124] (Adamson JA); [125] (Preston CJ of LEC).

   Repatriation Commission v Nation (1995) 57 FCR 25; [1995] FCA 355; Peacock v Repatriation Commission (2007) 161 FCR 256; [2007] FCAFC 156; Kaluza v Repatriation Commission (2011) 280 ALR 621; [2011] FCAFC 97; Smith v Comcare (2015) 65 AAR 288; [2015] FCAFC 24; New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act (Nelson Bay) (No 2) [2015] NSWLEC 71; Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178, cited.

As to the third issue:

1. The primary judge did not construe the remitter order as precluding the receipt of further evidence. Rather, the primary judge had drawn a distinction between the identification of the boundaries of the damage the subject of the compensation for financial losses (which the primary judge had already determined and which had not been disturbed on appeal) and the quantification of the compensation. In circumstances where the Lord Affidavit went only to the former, it was open to the primary judge to reject it: [106]-[107] (Ward P); [124] (Adamson JA); [125] (Preston CJ of LEC).

2. Section 155(6A) of the Mining Act 1992 (NSW) is expressed in permissive, rather than prescriptive, terms. The primary judge was therefore under no obligation to give leave for the Lord Affidavit to be read: [111]-[118] (Ward P); [124] (Adamson JA); [125] (Preston CJ of LEC).

JUDGMENT

1. WARD P: In December 2022, the Court of Appeal (constituted by myself, Mitchelmore and Kirk JJA) made an order remitting to Duggan J in the Land and Environment Court (LEC) the matter then before the Court of Appeal and did so “on the question of quantification of the compensation payable by the appellants [the Cobalt entities] for the compensable losses identified at [43] and [44]-[46] of the primary judgment” (see Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271) (Remitter Judgment).

2. The remittal has now spawned further litigation in this Court. By a notice of appeal filed on 20 August 2024, Mr Lord (in his personal capacity and as representative of the estate of his late father) challenges the decision of Duggan J given on 20 May 2024 in Lord v Broken Hill Cobalt Project Pty Ltd (2022) 254 LGERA 274; [2024] NSWLEC 52 (the primary judgment). (I refer to the appellants jointly as Mr Lord.) Mr Lord maintains that he has an appeal as of right from the decision of Duggan J on the remittal, pursuant to s 57(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

3. By notice of motion filed on 17 September 2024, the Cobalt entities (the appellants on the first appeal and the respondents to the current appeal) seek an order pursuant to r 51.41 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the appeal be dismissed as incompetent.

4. Both the appeal and the notice of motion were heard on 5 December 2024.

Background

5. The background to the current dispute is set out in the Remitter Judgment and these reasons assume familiarity with that judgment.

6. In summary, the proceedings in the LEC concern an application brought by Mr Lord pursuant to s 155 of the Mining Act 1992 (NSW) (Mining Act) for review of the final arbitral determination in relation to a land access arrangement arbitration concerning three Exploration Licences (ELs) held over rural land near Broken Hill, New South Wales. The ELs were issued under Part 3 of the Mining Act, covering about 7,000 hectares of land forming part of Thackaringa Station on which the Lord family carries on sheep farming. Thackaringa Station is a property occupying some 64,610 hectares in total, comprising both freehold and leasehold title (the latter being Crown leases under the Western Lands Act 1901 (NSW)).

7. It is not necessary here to set out the statutory scheme relating to access arrangements for prospecting titles, about which there was no dispute.

8. Mr Lord’s application was heard and determined by the primary judge on an expedited basis (it was filed on 8 September 2021, heard over three days on 20-22 October 2021 and, with commendable expedition, judgment was handed down on 12 November 2021 (David AnthonyLord v Broken Hill Cobalt Project Pty Limited [2021] NSWLEC 126) (Lord No 1)). The parties had adduced a substantial body of evidence for that hearing: the applicants adduced lay evidence from Mr Lord and expert evidence from Mr Hopcraft, a property valuer; the Cobalt entities adduced expert evidence from Mr Ivey, an agricultural consultant and forensic accountant, and Dr Russell Bush, a specialist in the field of agriculture and livestock production. The Cobalt entities also tendered lay evidence from officers of those companies and expert evidence in the fields of dust and biodiversity/ecology.

9. The primary judge determined that the Cobalt entities could have access to Thackaringa Station in relation to the three ELs on the terms of the Access Arrangement annexed to her Honour’s reasons. The primary judge also fixed compensation for the specific activities of drilling, costeaning, bulk sampling and track making, and awarded a lump sum payment of $20,000 per annum for each EL as compensation for non-financial losses. (The parties had proposed the adoption of a lump sum figure as compensation for non-financial losses but were not agreed on the appropriate amount.)

10. After an unsuccessful application by the Cobalt entities before her Honour to vary Lord No 1, the Cobalt entities appealed to this Court, challenging the decision on various grounds including, relevantly, the adequacy of reasons of the primary judge. In the Remitter Judgment, the appeal was upheld only on that ground. The Court held that the reasons were inadequate insofar as there was no identification of the lump sum amount that was attributable to the two categories of compensable loss in question (namely, what were referred to as impacts on management and inherent damage to the surface of the land). The Court held that it was not sufficient to nominate a global figure without explaining how it was reached (see my reasons at [114], [116], Mitchelmore and Kirk JJA agreeing at [173] and [174], respectively).

11. The remitter order, as noted above, referred in terms to the remittal being on “the question of quantification of the compensation payable … for the compensable losses identified at [43] and [44]-[46] of the primary judgment”. It is convenient to extract those paragraphs in full. The first of those paragraphs ([43]) deals with the issue as to the impacts on management likely to be caused by the prospecting operations, and the second set of paragraphs ([44]-[46]) relate to the issue of damage to the surface of the land inherent in the carrying out of the prospecting operations:

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 the Prospecting Operations. This intrusion will require the Applicants to consider the presence of these persons and the activities in all aspects of their use of the balance of the Land. The mustering of their flock, the movement of stock through paddocks, the travelling along the access tracks within the Land and the capacity to make other management decisions relating to the use of the Land as a whole will be impacted during the term of the Access Arrangement. This is a loss that cannot be measured by time spent in the handling of stock as it goes well beyond that action. The interference to management and influence upon management decisions is, in the circumstances of this case, a loss capable of comprising compensable loss within the heads of loss in s 262 as it is consequential upon the deprivation of the possession or of the use of the surface of land or any part of the surface, together with the loss being consequential on the disturbance of or interference with, stock. These management considerations are likely losses within the meaning of the definition in s 262 and, therefore, comprise a compensable loss for which compensation must be determined.

44   Further, I accept the Applicants’ submissions based upon the evidence, that it is inherent in the carrying out of the Prospecting Operations that there will be damage to the surface of the Land. Such damage arises from disturbance to the surface of the Land and the vegetation upon it. Such disturbances include, but are not limited to, the drilling platforms and the existing and proposed use of access tracks.

45   It is accepted that these disturbed areas of land will ultimately be rehabilitated to the satisfaction of the relevant regulatory authority, however, from the period of the commencement of access until completion of the rehabilitation there will be a lengthy period where the damage will be present. The rehabilitation of such areas after the Prospecting Operations have been completed does provide an end date to the damage but does not preclude a finding that such damage has occurred and that such damage may comprise a non-financial loss for which the Applicants are entitled to compensation. Such compensation relates to the actual period of occupation by Cobalt on the Applicants’ Land.

46   In the circumstances of this case the evidence is that the Land is fragile. It is subject to erosion and its vegetation is sparse. That is the context within which the Prospecting Operations will occur and exemplifies the fact that the damage sustained to the Land during the period of access is not compensated for in the determination of financial losses which relate solely to the inability for the sheep to graze those areas during access. Accordingly, I find that there is the additional head of compensable loss for such damage relating to disturbed areas and consequential disturbance caused by the clearing and use of such areas.

12. In the Remitter Judgment, I noted (at [114]) that the complaint by the Cobalt entities in relation to the award of the lump sum appeared not to be as to the making of a lump sum amount per se, but rather as to the lack of identification of the amount within that lump sum that was attributable to each of the two categories of compensable loss referred to above and as to the lack of reasons for the fact that the lump sum was awarded on an annual basis for each EL.

13. As to the judge to whom the matter should be remitted, at [169] of the Remitter Judgment, I said:

169   Bearing in mind that the issue on which the matter is to be remitted is as to adequacy of reasons and the caution with which the discretion to remit a matter to a different judge is to be exercised, I am of the view that the matter should not be remitted to a different judge. Rather, any deficiencies in the reasons of the primary judge can be rectified by the remittal of the matter to the primary judge for further consideration and the provision of additional reasons. …

14. The words “for further consideration and the provision of additional reasons” in the above paragraph assumed some significance when the matter was remitted, as I explain below.

15. What then occurred (as gleaned from the Court Books on this appeal) was as follows.

16. There was a mention before the primary judge on 9 March 2023. On that occasion, the Cobalt entities sought a direction that they be permitted to file submissions in relation to the question of quantification of compensation payable by them for the compensable losses identified at the above extracted paragraphs from her Honour’s reasons (see Cobalt submissions on scope of remitter dated 28 March 2023). An order was made for submissions to be made by the parties as to the scope of the remitter.

17. The Cobalt entities contended that the scope of the matter remitted was not limited to the provision of further reasons and permitted the Court further to consider and determine the question of quantification of compensation (see from [4] of their submissions dated 28 March 2023). In that regard, reference was made to the words “further consideration” at [169] of the Remitter Judgment.

18. Mr Lord, by submissions in response filed on 13 April 2023, resisted that approach, contending that the remitter was on a limited basis – for the provision of further articulation of the reasoning underpinning the conclusions that had been reached. Mr Lord submitted that her Honour should take under consideration the evidence and produce reasons for the conclusions expressed in the specified paragraphs without requiring further argument or submissions (see at [7]-[17] of Mr Lord’s submissions).

19. The Cobalt entities then filed submissions dated 21 April 2023 in reply, emphasising that they did not seek to re-open the case but that they sought to be heard on the court’s task on remittal to reconsider and reach a compensation amount (which they said might be the same amount as previously determined or, on a reconsideration of the evidence, a different amount). Pausing here, Mr Lord was therefore squarely on notice that the quantum of compensation might or should be in issue.

20. On 7 July 2023, her Honour determined that the scope of the remitter permitted the making of further submissions as to the quantification of the compensation payable for the compensable losses identified in the specified paragraphs (see Lord v Broken Hill Cobalt Project Pty Limited [2023] NSWLEC 70 (Lord No 2)).

14. Mr Lord then foreshadowed an application to adduce further evidence on the remitter (inconsistent with his initial approach to the question of further submissions but no doubt in light of the fate of that approach). Directions were made for the filing of any application to rely on further evidence within seven days of the published judgment and for the listing of any such application for a one hour hearing at 9am on 27 July 2023.

15. Mr Lord duly filed a notice of motion on 14 July 2023 (amended on 26 July 2023) for leave to rely on further evidence. The nature of that evidence was initially identified in an affidavit sworn 14 July 2023 by Mr Lord’s solicitor, Mr Freidman. It comprised evidence going to the impacts on management identified at [43] of Lord No 1 (relating to the time and effort actually occupied in dealing with the matters arising from the use of the land pursuant to the Access Arrangement) and evidence going to the nature of the effects of damage to the land, including the consequential effects of the activity on the area that the Cobalt entities would not be required to remediate under the EL (see Mr Lord’s submissions dated 26 July 2023 at [5]).

16. As adverted to above, submissions dated 26 July 2023 were filed on behalf of Mr Lord in support of the application to adduce further evidence.

17. The Cobalt entities opposed the application for leave to adduce further evidence, contending that the scope of the remitter (though broad) did not extend to a re-hearing of evidence.

18. The motion to adduce evidence was part heard on 27 July 2023, at which time her Honour requested assistance as to the substance (not subject matter) of the evidence sought to be adduced. Counsel for Mr Lord indicated that there were two separate and identifiable areas in which there was a need to receive further evidence: one was the impact on management (as to which Mr Lord would describe the regime under the existing Access Arrangement) and the second as to the inherent damage to the land (the cryptogrammic crust), which it was envisaged would be expert evidence (27/7/23; T 1.25).

19. As to the first, her Honour referred to evidence that Mr Lord had already given during a “video site inspection”. As to the second, her Honour expressed doubt as to the proposition that expert evidence would be required since her Honour had accepted that the land would be rehabilitated ultimately at the cost of the Cobalt entities and that what was to be quantified was the compensable loss during the period of the occupation by the Cobalt entities (27/7/23; T 2.24-3.39).

20. There was also debate on that occasion during the course of which her Honour emphasised that the remitter was not to revisit findings already made as to issues relating to the identification of damage; rather, it was to quantify the compensable loss or damage. In that context, her Honour referred to having “set the boundaries” in [45] (which related to the impact of land damage) and her Honour made clear that she was looking at quantification, and “not looking at going back and rethinking the boundaries of the identification of the damage” (27/7/23; T 6.35). It is clear from the transcript that the reference to not “rethinking the boundaries of the identification of damage” was made in the context of the second of the two categories of compensable loss. What was there being considered was whether there was a need for expert evidence (such as from a surveyor) as to the areas of disturbance.

21. Thus, in response to a complaint by Counsel for the Cobalt entities as to procedural fairness if further evidence from Mr Lord was allowed (see 27/7/23; T 7.22), her Honour referred to evidence at the time of the first hearing of Mr Ivey (Mr Lord’s valuer) “as far as quantification went at the time” (namely, of it being a nominal amount and as to his estimate of the cost for a farm manager) (27/7/23; T 7.30-T 8.3). Her Honour also made reference to the video site inspection evidence (27/7/23; T 8.30).

22. Her Honour ultimately decided to proceed “in a stepped way”: to reserve the question of leave to adduce evidence and to require Mr Lord to put on an affidavit and then bring the matter back for a decision as to whether or not leave should be granted and, if so, what evidence the Cobalt entities should be permitted to adduce (27/7/23; T 7.49-T 8.3). Her Honour indicated that Mr Lord’s affidavit should be served by 25 August 2023 (27/7/23; T 5.19) and stood the matter over to 1 September 2023 for no more than one hour (27/7/23; T 11.11).

23. An affidavit was sworn by Mr Lord on 29 August 2023 (Lord Affidavit). By reference to its subject headings, it addressed the “Impact of Cobalt activities on Management” ([5]-[13]) and the “Damage and Impact caused to the land by Cobalt” ([14]-[28]). (In the present hearing, ultimately the real complaint by Mr Lord is as to the rejection of [8] of this affidavit but I deal with that in due course.)

24. In advance of the hearing on 1 September 2023, Cobalt filed amended submissions dated 31 August 2023 on the application to adduce further evidence. In those submissions, the Cobalt entities articulated their opposition to the further evidence, including the procedural unfairness said to arise if they were required to meet a “shifting case” (by reference to evidence adduced retrospectively to support the court’s findings), the irrelevance of part of the evidence to the remitted issues (referring to [26]-[27] of the Lord Affidavit, relating to impact on livestock); prejudice to them in terms of delay and consequential costs; and the public interest in finality of litigation. Emphasis was placed on forensic decisions having been made by the Cobalt entities as to the preparation and presentation of their case having regard to the case that they had been required to meet at first instance.

25. The hearing of the motion resumed on 1 September 2023.

26. Her Honour commenced by stating that she now had the Lord Affidavit and she did not see how it helped her (1/9/23; T 1.17-23), noting that what she was looking at doing was quantifying the impact of the Cobalt activities on management and the damage and impact on the land caused by Cobalt. Her Honour referred to material that was adduced at the hearing (in relation to the latter) and said that submissions could be made on that matter; and that the impact on livestock (dealt with at [26]-[27] of the Lord Affidavit) was not the subject matter of the quantification that had been remitted to her (1/9/23; T 1.48-T 2.5).

27. Her Honour said that the fact that legal meetings had been “lumped” with Cobalt meetings meant that she could not discern from the material what was dealing with management and what was dealing with Mr Lord and his solicitor; and how that related to the impacts from Cobalt (1/9/23; T 2.2ff). Her Honour made clear that what she was looking at, in relation to the impacts of management, was the time spent in ongoing management while the ELs were in place and said that the evidence did not appear to address that (1/9/23; T 2.7-15).

28. In response to that, there was the following exchange with Counsel for Mr Lord (1/9/23; T 2.31-47):

LANE:   It does, that’s the evidence that Mr Lord gives, that he spends about an hour a day of considering and worrying and dealing with Cobalt’s activities.

HER HONOUR:   But he talks about – that’s para 8?

LANE:   Yes, and he gives an example.

HER HONOUR:   If I was going to let anything in it would only be para 8 I think.

LANE:   Your Honour, there’s the evidence in para 7, which is Taz Smith, which does provide some quantification of the kind of expenses.

HER HONOUR:   I have the evidence about the worker rates from Mr Ivey, wasn’t it?

LANE:   Yes, that’s correct, and they’re pretty comparable. If your Honour is assisted already and sufficiently to provide reasons.

36. Paragraph [8] of the Lord Affidavit, to which her Honour had there referred, read as follows:

8.   I have also spent considerable time on management activities related to COB [the Cobalt entities] and the exploration licences which are not covered by the specific meetings or appointments referred to in paragraph 6 above. These activities include writing and replying to emails, dealing with requests for access, discussions on stocking of paddocks where the exploration licences are located, discussions in relation to monitoring of COB’s activities and securing Thackaringa, and reviewing and discussing COB’s activities. This includes informal contact with COB employees dealing with the administration of access and discussions between Hugh and me in relation to the best way to manage the impacts of the exploration program on the stock on Thackaringa. I estimate that I spend not less than 1 hour a day on average undertaking these activities and I also estimate that Hugh spends not less than 30 minutes a day on average managing the impact of COB’s activities in relation to the exploration licences including speaking with me concerning the management of stock in the vicinity of the exploration licence areas and the monitoring of COB’s activities.

37. Her Honour indicated (1/9/23; T 3.19-42) that what she was trying to quantify was the concept of what (outside of the formal arrangements of the Access Agreement) the farmer (i.e., Mr Lord) would have to do to respond to the presence of the miner (i.e., the Cobalt entities) on the land and how that impacted on the management decisions. Her Honour accepted that Mr Ivey had given certain evidence (which her Honour said could be the subject of submission) but indicated that the type of evidence to which she was referring was “more the types of thought processes that now have to be undertaken that wouldn’t have to be undertaken if there wasn’t a third party doing something on the land”. Counsel for the Cobalt entities indicated that if that kind of evidence was admitted (i.e., the types of thought processes that would not have been required but for the presence on the land of the Cobalt entities, which in context must be referring to matters of the kind set out at [8] of the Lord Affidavit), it would require a response. There was then the following exchange (at 1/9/23; T 3.46-4.35):

HER HONOUR:   But how can you respond to Mr Lord, that’s what he says he spends every day thinking about it. What, are you going to get an expert to say Mr Lord shouldn’t spend that much time thinking about it.

REID:   Yes, because any compensation needs to be reasonable compensation in the context of the statutory scheme.

HER HONOUR:   Yes.

REID:   And that means that I would need to have an expert tell me what is a reasonable amount of time, given the size of the land, the number of sheep that are run on it, and the area of the paddocks, what is a reasonable amount of time given the number of days that Cobalt are on the land, and keeping in mind that this is for an exploration licence rather than a mining lease. So there is less intervention in terms of this land than if the mining company were to ultimately find the resource and make an application for full-scale mining on the land, so that would need to be tempered with that type of (a) factual information and then (b) expert evidence as to what is reasonable in terms of the requirements for consideration.

Then I suspect there is a factual disagreement between the parties which could be dealt with by perhaps correspondence that has already passed between the parties as to how many emails there actually are, what is that level of administration. This paragraph doesn’t give – it’s more of a submission.

HER HONOUR:   That’s the trouble. The way it has been drafted I had expected if there was going to be evidence, because I had this sort of material before me, this sort of global analysis before me, and this has not taken it deeper than that. Ms Lane, I just don’t think I’m going to be assisted by this and, to the extent that I get any assistance, that is outweighed by the need for a response in circumstances where the only reason why there is a need for a response is the way the affidavit has been drafted rather than anything else.

I am of a mind, now that we have seen the evidence, to reject it on the basis that it appears that the majority, in if not all, of the material that is in the affidavit is either before me insofar it is relevant or this affidavit deals with matters that aren’t the subject of the remitter. You have got all of the evidence before me and you can make submissions in relation to that, so I refuse leave to adduce the evidence proposed in the affidavit of David Anthony Lord of 29 August 2023. [my emphasis]

38. I will return to the italicised passage above in due course as it occupied considerable time in the oral submissions in this Court.

39. Having rejected the application for leave to adduce the further evidence (i.e., the Lord Affidavit), her Honour dismissed Mr Lord’s 14 July 2023 notice of motion and fixed the remitter matter for hearing. Ultimately, the hearing took place on 12 December 2023. Her Honour had the benefit of written submissions from the parties: Mr Lord’s submissions dated 6 October 2023, which were expressly directed toward providing assistance on the evidentiary basis for the amount arrived at for non-financial losses (i.e., the $20,000 per annum per EL figure); the Cobalt entities’ submissions dated 27 November 2023, which included that the “financial loss in relation to the management of stock as calculated by Mr Ivey should be reinstated into the Access Arrangement as a quantifiable financial loss” ([72]); and Mr Lord’s submissions in reply filed on 8 December 2023.

40. In his submissions in chief before her Honour, Mr Lord accepted the amounts identified by Mr Ivey as hourly rates but said that Mr Ivey’s “assumed level of response” (i.e., the amount of management time impacted by the Cobalt prospecting activities) underestimated the time necessary in dealing with Cobalt’s access under the ELs and under the Access Arrangement (see at [29]). In reply submissions, Mr Lord submitted that compensation could be assessed, adopting the figure of $50 per hour in respect of the landowner’s time (without taking account of any expenditure on additional labour, the matters arising from the Access Arrangement, and the daily presence of vehicles and equipment), on the basis of a least one hour a day (which would produce a calculation of $18,250 per year ([26])).

41. In the Cobalt entities’ submissions (at [27]), it was submitted that:

27   The applicants, bearing the persuasive onus as to compensation, were given an opportunity on the remitter to make an application to call evidence as to the impact of the Access Arrangement / exploration activities on the grazing operation, including how it is managed. The application was ultimately refused. However, it is notable that the applicants have made forensic decisions not to adduce evidence as to the actual impact of the Access Arrangement / exploration activity on the remitter hearing, the substantive hearing and in the arbitration. The subject matter and claim for compensation required the applicants, as graziers, to provide detailed evidence on the management of the grazing enterprise. That evidence would need to include evidence of how decisions are made to move stock, how often stock are moved and whether the proposed exploration activities impact those movements or add work to the grazing enterprise. There is no such evidence from the applicants.

42. In other words, the submission there made was not that there was “no evidence” at all as to the impact on management (which would rightly have been criticised given that the Cobalt entities had opposed the application to adduce the evidence in Mr Lord’s affidavit). Rather, the submission was that there was no evidence of how relevant management decisions were made and whether the proposed exploration activities impacted the stock movements or added work to the grazing activities.

43. So understood, it is clear that [8] of the Lord Affidavit does not address those matters. It simply lists a number of activities (including monitoring Cobalt’s activities and responding to exigencies as they arise from Cobalt’s activities, which her Honour found were not within the scope of the non-financial loss as they could be compensated for by the enforcement of the Access Arrangement) and ascribes a global time thereto.

44. It is also relevant to note that in the Cobalt entities’ submissions, there was a table setting out the evidence that was said to have been before her Honour at the first hearing in relation to the management considerations that would be necessary to accommodate the exploration activities (see at [29]).

Primary judgment

45. On 20 May 2024, her Honour published her judgment on the remitter. In those reasons, under the heading “Nature of proceedings”, her Honour referred to the background to the remitter, noting (at [4]) her judgment in Lord No 2 in which her Honour accepted that the parties were entitled in the remitter to make further submissions. At [5], her Honour referred to her ruling on the application to adduce further evidence on the remitter (made on 1 September 2023) and said:

… After considering the nature and scope of the evidence sought to be adduced, I declined to grant leave to adduce the evidence as it was beyond the scope of the matters to which the remitter related. … [my emphasis]

46. Her Honour then summarised the respective parties’ submissions (Cobalt entities’ submissions at [6]-[10]; Mr Lord’s submissions at [11]-[15]) before referring to the findings of this Court that had led to the remitter and the heads of compensable loss that were determined in Lord No 1 and were now the subject matter of compensation. It is relevant to note that Mr Lord’s submissions included (as recorded by her Honour at [12]) that at least one hour per day for EL 6622 (which was said to have the most intense access) and one and a half hours per day for each of the other ELs was necessary to engage in dealing with Cobalt’s access. Her Honour noted that “[t]he timing was not related to any specific evidence of time but rather a rational assessment having regard to the long list of considerations that the Applicants would have to engage with in accordance with the Access Arrangement.”.

47. Pausing here, even if [8] of the Lord Affidavit had been admitted, it did not address the issues her Honour had raised in argument, nor did it ascribe time, other than in a broad sense, to particular activities as noted above. Hence the prejudice to Mr Lord of its rejection is moot.

48. At [22], her Honour referred to My Ivey’s oral evidence at the first hearing that, if there was to be compensation for losses of the kind set out by her Honour at [21], by way of a lump sum per EL for inconvenience or lack of amenity, it could be determined on a time basis and would be a nominal sum (noting that Mr Ivey identified such nominal sum as $3,000 per EL).

49. Her Honour did not accept that the increase in management, required as a direct consequence of the Access Arrangement, was merely nominal, saying that it was substantive and ongoing. Her Honour noted that the Access Arrangement provided for daily access over a significant period following which there would be a further period of access to complete rehabilitation works. Her Honour said that the management decisions to be made would not be “one-off or otherwise subsumed in normal farming practice” but would be influenced by the actions taken by Cobalt at any given time. Her Honour considered a “nominal” payment across the ELs in the order of the $5,000-$10,000 identified by Mr Ivey, or the single ex gratia payment of $3,000 per EL as adopted by Cobalt, to be too low ([23]).

50. At [24], her Honour noted the types of activities to which the management practices would relate which were identified by Mr Lord by reference to the provisions of the Access Arrangement and said that, to the extent that the identified matters related to the surveillance of Cobalt to ensure compliance with the terms of the Access Arrangement, she did not consider that these were relevantly compensable costs because the Access Arrangement was capable of being enforced if breached. Her Honour went on to say:

25   However, the Applicants' identification of management time to be expended was not solely reliant upon enforcement. Cobalt is required to provide a works programme annually to the Applicants. The purpose of such a works programme is to permit an understanding of the location upon the Land that the exploration works will be focussed for that period. During that period a part of the Land will be subject, not just to the exploration works, but the creation of access tracks which require input from the Applicants. Further, the exploration anticipates the movement of vehicles daily along such tracks, and the maintenance of such tracks for example by maintenance works and the watering of such tracks (if required). Such activities pose a risk of conflict between the sheep grazing uses and the exploration uses requiring a consideration of land management practices to be deployed to avoid such conflict; for example, considerations relating to stock movement being timed to avoid the traffic movements anticipated in the exploration activities and avoiding access tracks that are being maintained.

26   I accept that the quantification as an amount of time that such decision-making will undertake is difficult. That being said, it is not impossible. The Applicants know their Land and can make such decisions, as required, on a daily basis without having to maintain a system such as a time sheet. As knowledgeable and experienced graziers they can accommodate such decision-making as part of their general daily decision-making, however, such decisions would not in the usual course of their grazing enterprise have to take into account the actions of third parties. I have estimated the time spent based upon a daily/weekly basis in light of both grazing activities and the exploration activities occurring every day of the year.

27   As to the evidence available to me, Mr Ivey gave evidence at Tcpt, 21 October 2023, p 79(38-49):

HER HONOUR: Mr Ivey, you identified in the conversation with Ms Lane that there may be management decisions or diversion from daily activities to accommodate the works on the site, but you didn't take that into account because it wasn't a financial cost. If that was a loss that was compensable, how would you determine a value for that, which would seem to be different from this notion of inconvenience or loss of amenity?

WITNESS IVEY: Just thinking about it, your Honour. Perhaps the easiest and most accurate basis would be just on - on time basis. If it takes an extra hour every two or three months to take into account the activities, or to think about some of the issues, then the time taken might be the best basis to do that.

28   Based upon the evidence of Mr Ivey, the decisions to be made would occupy approximately a 1 minute (or less) per month. As I observed in Lord No 1, I do not consider that the decision-making I have identified above is of a type that would be adequately compensated by a nominal sum. Based upon a consideration of Mr lvey's evidence, together with the evidence given by Mr Lord as to the management practices he employs as to stocking of his Land and the like, I consider that a sum greater than this amount is warranted in the circumstances.

29   Depending upon the daily work schedule undertaken I expect that there will be some periods where the work schedule proposed by Cobalt will require more time to consider than at others. I consider that a small period of time per week; namely 35 minutes, would adequately accommodate for such variations in time spent.

30   I have taken into account the hourly rate of a farm manager at $50/hour which, if on average 35 minutes per week (or 5 minutes per day), was spent on management decisions directly responsive to the intersection of the Access Arrangement and farm management practices, but not including time spent in - consideration of "compliance" with the Access Arrangement would produce the sum of $1,521 (rounded up to the nearest dollar) per annum across the three Els.

31   As the exploration activities are intended to continue for the period of each EL, I also consider that it is appropriate that such payments be determined on an annual basis rather than as a single sum. This reflects the ongoing management impacts. Additionally, as the evidence disclosed that the works programme would be progressive through each of the Els and not generally undertaken concurrently it is appropriate that such annual amount be a single sum (rather than a sum per EL), as the response to the works programme would be limited to each EL successively rather than concurrently.

51. As to the impacts on land, her Honour accepted the submissions of Cobalt that such impacts were yet to be identified and that the likelihood of such impacts in fact occurring would depend upon the rehabilitation programme implemented by Cobalt ([35]). Her Honour said:

38   Such provisions make it plain as to the extent of disturbance to the Land during the exploration activities. Should damage beyond those periods occur, or other land than that to which such provisions relate are damaged, a further claim and assessment can be undertaken. In the circumstances the determination of any compensation for damage to the Land should await the point in time where such occurrence can be identified and particularised.

39 Accordingly, I decline to make provision for compensation in the present Access Arrangement for the prospect of such damage and therefore leave such consideration to a future application pursuant to s 276 of the Mining Act, which both parties accepted would be appropriate if I was unable to quantify any such loss on the evidence available to me.

52. The amendment to the Access Arrangement for the impact on management costs was to provide for a lump sum amount of $1,521.00 per annum for each year of the term. The complaint by Mr Lord in essence is that this quantifies the impact on management costs at 5 minutes per day compared to the 90 minutes per day that Mr Lord was likely to spend in management time (one hour of his time and half an hour of his son’s). The difference, based on a $50 per hour rate, over a 365 day period was calculated at some $129,000 over the 5 year term of the Access Arrangements (see AT 50.27). Senior Counsel for Mr Lord described this as a “wildly different decision” (AT 51.46).

53. Of course part of the difficulty in saying that there is such a difference in the amounts is that the initial lump sum of $20,000 per EL covered two categories of compensable loss, and one does not know how the two components of that loss were quantified at the time (assuming the two components were separately assessed at the time). That was the very reason for the remitter – the inability to understand from the reasons what amount was attributed to each. Though we now know what amount has been attributed to the impacts on management head of loss (and how it has been arrived at), it is quite possible that there is not a stark difference from what that figure would have been had it been separately quantified at the time.

54. Hence the more accurate comparison is between a component calculated by reference to 5 minutes per day (as her Honour’s figure represents) and the 90 minutes per day for which Mr Lord contended.

Grounds of Appeal

55. The sole ground in Mr Lord’s notice of appeal filed 20 August 2024 is that:

1   The primary judge erred in a decision on a question of law in that (having refused the appellants leave to adduce further evidence on the remitted matter) she failed to have regard to material:

(a)    that was relevant and material to the issues that arose in the remitted matter regarding the compensable losses identified at [43] of Lord No 1 and at [21]-[32] of the judgment below; and

(b) which was permitted to be given in that proceeding and required to be taken into consideration by the primary judge under s 155(6A) of the Mining Act 1992 (NSW).

56. However, in oral argument the fundamental or foundational error was put as being the failure properly to construe the remitter order (AT 3.40), i.e., in construing it such that it did not permit the evidence of Mr Lord to be adduced. I consider below this argument (from [111]).

Notice of Motion

57. By notice of motion filed 17 September 2024, the Cobalt entities seek, relevantly:

1. Pursuant to rule 51.41 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the appeal be dismissed as incompetent in that it:

(a) does not identify a question of law and does not identify an error on a question of law, and is therefore not an appeal within section 57(1) of the Land and Environment Court Act 1979 (NSW); and/or

(b)   is in substance a challenge to the trial judge's interlocutory decision refusing to grant leave to the appellants to adduce the affidavit of David Anthony Lord of 29 August 2023, and leave to appeal has not been sought or granted.

Particulars

(1)   The respondents sought particulars of ground 1 in the notice of appeal on 26 August 2024 and asked the appellants to identify the “material” to which the trial judge allegedly failed to have regard;

(2)   the appellants answered that request on 6 September 2024 by indicating that the 'material is contained in the affidavit of Mr Lord and Exhibit DAL2 of 29 August 2023';

(3) the trial judge’s decision to refuse leave to adduce that further evidence on the remitter (noted in [2024] NSWLEC 52 at [5]) is not within the principle that leave to appeal is not required in an appeal from a final judgment in respect of an interlocutory order which affected the final result.

2.   Costs

3.   Such other order as the Court thinks fit.

Issues arising for determination

58. In oral submissions, Senior Counsel for Mr Lord identified three issues arising for determination by this Court: first, whether leave to appeal is required; second, whether the appeal is on a question of law; and, third, whether, assuming error on a question of law is established, the error was material to the determination (AT 2.3). It is convenient to address the matter by reference to those issues.

(i)    Is leave required?

Mr Lord’s submissions

59. On the first of the issues identified by him (whether leave is required), Mr Lord submits that the appeal is brought not against an interlocutory order or decision (i.e., the evidentiary ruling on 1 September 2023, although he does contend that this was in error) but against a final order or decision.

60. The alleged error of law is articulated in Mr Lord’s written submissions as the failure of the primary judge to have regard to the material in the Lord Affidavit, which Mr Lord says was material to the issues that arose in the remitted matter (regarding the compensable non-financial losses), permitted to be given in the proceeding, and required to be taken into consideration pursuant to s 155(6A) of the Mining Act on the review (by way of re-hearing) of the arbitrator’s decision. (There is an obvious tension between alleging error in failing to have regard to material that was not in evidence before her Honour, as a result of her Honour’s decision to refuse leave for it to be adduced, on the one hand, and not challenging the interlocutory decision to refuse leave for the evidence to be adduced, on the other hand.)

61. Mr Lord further submits that, in any event, the present appeal is one which does not require leave having regard to the Gerlach principle, i.e., that a party may challenge the correctness of a final judgment entered in a matter on the ground that some interlocutory decision or ruling was wrong (see Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 (Gerlach) at [4]-[5] per Gaudron J). Of course that requires that the interlocutory order be one which affected the final result. Mr Lord refers in this context to Perilya Broken Hill Ltd v Valuer-General [2015] NSWCA 400 (Perilya) at [11] per Leeming JA, where notwithstanding the interlocutory nature of the impugned decisions, there was an appeal as of right because the appeal challenged interlocutory orders which affected the final dismissal of Perilya’s proceedings.

62. That said, Mr Lord provided with his submissions a draft application for an extension of time for leave to appeal and leave to appeal against the possibility that such leave was required. The draft application for leave was not addressed in oral submissions.

Cobalt entities’ submissions

63. The Cobalt entities accept that an interlocutory order can be challenged in an appeal against the final judgment in the matter if the interlocutory order “affected the final result” (citing Gerlach at [6]) but they submit that the interlocutory decision of the primary judge to refuse leave to adduce further evidence at the remitted hearing did not affect the final result of the proceedings in the requisite sense. This is on the basis of their contention that the refusal to admit that evidence has not resulted in any miscarriage of justice (citing Gerlach at [7]).

64. As to the submission by Mr Lord that there was a miscarriage of justice, the Cobalt entities say that Mr Lord had, and took, a procedurally fair opportunity to make the application for leave to adduce that evidence at a specially fixed hearing on 1 September 2023, involving the consideration by the primary judge of written and oral submissions; and that Mr Lord accepted on that occasion that the primary judge had a discretion either to allow or to refuse the application. It is submitted that the application was refused on grounds that were open to the primary judge and justified by good reasons of utility, efficiency and case management.

65. It is noted that, consistent with the observations of the primary judge that submissions could be made on the evidence before the court as to time spent managing access, counsel for Mr Lord subsequently made submissions on the anticipated time to be spent on management considerations by reference to the evidence of the particular tasks that were said to be required, which culminated in a submission (on the evidence before the court) that Mr Lord would spend “at least an hour per day” on management in addition to other costs in employing labour and the use of farm equipment. The Cobalt entities say that this underlines that the proposed evidence in the Lord Affidavit at [8] took the evidence already before the court no further; it was merely a summary or recasting of other evidence already before the LEC. Accordingly, the Cobalt entities submit that the decision to refuse leave to adduce the evidence the Lord Affidavit was not material and any error in refusing leave does not vitiate the decision.

66. The Cobalt entities thus argue that the interlocutory decision of the primary judge to refuse leave to adduce further evidence at the remitted hearing cannot be challenged in an appeal against the final judgment and, absent leave being granted, the appeal is incompetent.

67. In reply submissions, Mr Lord says that the principle in Gerlach accommodates the principle that a new trial is not ordered where an error has not resulted in any miscarriage of justice, by acknowledging that “on appeal from the final order an appellate court can correct any order which affected the final result” rather than introducing cumulative requirements. Mr Lord submits that in the present case the requirement in Gerlach is satisfied because the evidence that the primary judge erroneously rejected went directly to an issue that was determined adversely to Mr Lord in the absence of his evidence. Mr Lord reiterates his contention that her Honour rejected his evidence based upon a misconstruction of the remitter order rather than generic case management considerations; and says that in refusing him leave to adduce the evidence contained in the Lord Affidavit, her Honour erred in a manner that affected the final result of the proceedings.

Determination as to issue (i)

68. There is no dispute that, under s 57(4)(d) of the LEC Act, leave is required for an appeal against an interlocutory order or decision.

69. As to the first of the bases on which Mr Lord submits that leave is not necessary (that the appeal is as to a final, not interlocutory, decision), the difficulty with Mr Lord’s argument is that there cannot have been an error by the primary judge in failing to have regard to material not in evidence before her. Thus, the challenge must be to the refusal to permit the evidence to be adduced and that was clearly an interlocutory decision, an appeal from which requires leave. However, the terms in which Mr Lord’s Notice of Appeal is drafted makes clear that it is her Honour’s final determination of 20 May 2024 which is sought to be appealed from, not her Honour’s preliminary evidentiary ruling on 1 September 2023. Having regard to the conclusion I have reached as to issue (ii), it is not necessary to consider the draft application for leave to appeal. I would simply note that it does not appear that the appeal involves any issue of principle or public importance; and the principle of finality of litigation points against a second remitter related to the issue of quantification of the compensable loss for the impact on management decisions of the prospecting operations. Mr Lord’s position as to compensation for the impact of land disturbance remains unaffected by this.

70. As to the second of those bases (an application of the Gerlach principle), this turns on whether the interlocutory ruling in question was material to the outcome of the final decision. There is force to the submission by the Cobalt entities to the effect that the rejection of the Lord Affidavit would not have been material to the final decision because of its global nature and lack of specificity. That said, her Honour did appear, in the course of argument, to accept that [8] of the Lord Affidavit would have relevance to the issues on the remitter. Moreover, had it been admitted, and evidence adduced in response as foreshadowed, then the outcome of its admission would in combination with other evidence have had a material effect on the final decision. Therefore, I would be inclined to the view that the Gerlach principle does apply and leave is not necessary. However, ultimately nothing turns on this as I am of the view that the appeal fails for the reasons set out in (ii) below.

1. Is the appeal from an order or direction on a question of law?

71. Under s 57(1) of the LEC Act, a party to proceedings in the Class 8 jurisdiction may appeal to the Supreme Court against an order or decision (including an interlocutory order or decision) of the LEC on a question of law. Proceedings under the Mining Act fall within the LEC’s Class 8 jurisdiction (see s 21C of the LEC Act).

Mr Lord’s submissions

72. Mr Lord accepts that he must identify a question of law in order to engage the jurisdiction conferred by s 57 of the LEC Act; and that he must also establish that any error of law is material and vitiates the decision.

73. Reference is made in Mr Lord’s submissions to Kudrynski v Orange City Council [2024] NSWCA 33 (Kudrynski) and the debate as to whether on the proper construction of s 57(1) of the LEC Act it is the order or decision which must be on a question of law or, more generally, the appeal itself. Mr Lord referred to Griffiths AJA’s construction in Kudrynski (being that it is the former) and previous authority to which his Honour referred (Road & Traffic Authority of New South Wales v Peak [2007] NSWCA 66 at [139] (per Basten JA); B&L Linings v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [70] (per Allsop P, Giles and Basten JJA agreeing); ISPT Pty Ltd v Valuer General (2009) 165 LGERA 25 at [3]; [2009] NSWCA 31 (per Allsop P); Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2017) 94 NSWLR 554; [2017] NSWCA 73 at [6] (per Beazley P) and at [165] (per McColl JA)).

74. It is accepted that an appeal is available if a question of law is “necessarily implicit” in making the finding at issue and hence Mr Lord submits that in practical terms the choice of construction is unlikely to make a great deal of difference in the present proceedings.

72. Mr Lord points to authorities that recognise that an error of law arises or may arise if: there has been a misapprehension or failure to take account of any material fact (see the authorities at fn 88 to his submissions); or a failure to address a claim raised by a party on the basis that it involves a constructive failure to exercise jurisdiction (see fn 89); or a legally erroneous rejection of evidence (see fn 90). It is noted that the question whether a decision-maker acted in accordance with the scope of a remitter was characterised as a question of law in Repatriation Commission v Nation (1995) 57 FCR 25; [1995] FCA 355 (per Beaumont J, with whom Black CJ and Jenkinson J agreed) (Nation), the appellant here noting that the scope of a remitter turns upon the application of rules of construction. While a number of the propositions above are derived from cases dealing with provisions such as s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), Mr Lord argues that, by parity of reasoning, a decision-maker’s own determination of the same questions must also involve a question of law and therefore a decision on such a question.

73. As to the decision of the primary judge that is said to be the subject of appeal on a question of law in the present case, Mr Lord identifies the “foundational error” by her Honour as being that her Honour misconstrued the remitter order by applying it as if it constrained her from receiving evidence on the remitter (i.e., from giving leave in respect of Mr Lord’s affidavit) (see AT 3.18). In this regard emphasis is placed on the statement at [5] of the primary judgment as to the evidence being “beyond the scope of the remitter”. Mr Lord submits that, on its terms, the order effecting the remitter did not preclude her Honour from having regard to the Lord Affidavit, and her Honour’s reliance on the order to reject the evidence reflected an error in the construction of the order.

74. Mr Lord also argues that a question of law has arisen as to the failure of her Honour to comply with the terms of s 155(6A) of the Mining Act, amounting to a constructive failure to exercise jurisdiction under s 155. Mr Lord places emphasis on the fact that s 155(6A) relevantly provides in relation to a LEC review under s 155 of the Mining Act that “fresh material … may be given on the review and taken into consideration”. In oral submissions it was argued that “may” was mandatory in this section (see AT 6.27-T 7.12), and in reply submissions at [5], that it provides the “starting point”, such that any departure therefrom must be justified.

75. In written submissions, Mr Lord reformulated the two questions identified as questions of law in alternative ways but, in essence, he relies primarily on the alleged misconstruction of the remitter order (the so-called foundational error) and then on the alleged constructive failure to exercise jurisdiction.

Cobalt entities’ submissions

79. The Cobalt entities accept that the approach to whether or not there is an appeal against an order or decision on a question of law for the purposes of s 57 of the LEC Act should focus on matters of substance and not merely form. However, they say that the difficulty with the Notice of Appeal is that it seeks to raise an error of law at large rather than identifying the order or decision of the lower court on a question of law that is impugned (cf Kudrynski at [42]); and that this cannot be cured by the posing of questions on a conditional or alternative basis in written submissions.

80. Insofar as Mr Lord asserts that s 155(6A) of the Mining Act “required” the primary judge to consider any fresh material sought to be tendered by the appellants on the review of determination, the Cobalt entities point out that there was no decision or order of the LEC in relation to that matter in the primary judgment or in the course of determination of the application on 1 September 2023.

81. The Cobalt entities say that since there was no submission made by Mr Lord in the hearing of the remitted matter that the LEC was bound to entertain any evidence sought to be adduced by the appellants on the remitted matter pursuant to s 155(6A) of the Mining Act, the interlocutory decision to refuse leave to adduce evidence in the form of the Lord Affidavit was not a decision to refuse to consider evidence sought to be adduced pursuant to s 155(6A). The Cobalt entities say that the primary judge did not expressly or impliedly address a question of law about s 155(6A).

82. In the course of the hearing in this Court (see AT 38.7-15), Senior Counsel for the Cobalt entities appeared to accept that an erroneous construction of the remittal order would be an error on a question of law. However, the Cobalt entities submit that the basis on which her Honour refused leave to adduce the Lord Affidavit did not depend on the resolution of a question of law about the meaning of the order for remitter; rather, they say that it was a decision evidently made in the exercise of the LEC’s functions pursuant to s 155(6) of the Mining Act and the discretion conferred by s 62(1) of the Civil Procedure Act2005 (NSW) (Civil Procedure Act) and rr 2.1 and 29.5 of the UCPR. Thus, the Cobalt entities argue that no error on a question of law attended that determination.

83. Thus, it is submitted that Mr Lord has not identified a question of law expressly or impliedly addressed by the primary judge and determined incorrectly; that the Notice of Appeal and the submissions by Mr Lord do not respect the constraints imposed by s 57 of the LEC Act; and that the appeal is also incompetent on that basis.

84. In reply submissions, Mr Lord cavils with those propositions and maintains that the decision was a decision on a question of law because it was made upon the legal premise that, properly construed, the remitter order precluded the LEC from receiving Mr Lord’s evidence and was therefore permitted to disregard the evidence in undertaking its review under s 155 of the Mining Act (referring to the primary judgment at [5]).

Determination as to issue (ii)

85. Insofar as the appeal from the decision of the primary judge raises a question as to her Honour’s construction of the remitter order, I am of the opinion that it raises a question of law (see Peacock v Repatriation Commission (2007) 161 FCR 256; [2007] FCAFC 256; Kaluza v Repatriation Commission (2011) 280 ALR 621; [2011] FCAFC 97; Smith v Comcare (2015) 65 AAR 288; [2015] FCAFC 24; New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act (Nelson Bay) (No 2) [2015] NSWLEC 71; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1; [2009] NSWCA 178; P Herzfeld and T Prince, Interpretation (2^nd ed, Thomson Reuters, 2020) [36.40]).

86. As noted earlier, reference was made by Mr Lord to Nation, where the Full Court of the Federal Court (Beaumont J, with whom Black CJ and Jenkinson J agreed) held that the Administrative Appeals Tribunal (AAT), in considering an issue on remittal which was in fact outside the scope of the remitter (the scope having been determined by resort to the Federal Court’s reasons for judgment), exceeded its jurisdiction (thus constituting an error of law). Clearly, the determination of the scope of the remitter and the subsequent step of assessing whether the AAT went beyond its bounds involved questions of law.

87. To the extent that the submissions of the Cobalt entities on this issue look to whether her Honour did in fact misconstrue the remitter order, that arises on the appeal itself (not on the question whether the appeal from the decision is on a question of law).

88. As to the complaint that her Honour failed to comply with s 155(6A) of the Mining Act and there was a constructive failure of jurisdiction, and whether that involves a question of law, I would accept that the question whether s 155(6A), properly construed, obliged her Honour to admit (and then to consider) the evidence also involved a question of law.

89. Thus, I would answer the second of the issues identified by Mr Lord in his favour.

90. That means that, before addressing the third of his issues (remitter) it is necessary to consider whether her Honour in fact erred in the relevant respects.

Was an error of law established?

Alleged error as to misconstruing the remitter

91. I address first the so-called foundational error, namely the complaint by Mr Lord that her Honour misconstrued the remitter order by treating that order as one that precluded having regard to the Lord Affidavit.

92. I have set out above the circumstances that led to the rejection of the application to adduce the evidence and the statement made at [5] of the primary judgment to the effect that the evidence was “beyond the scope” of the remitter.

93. There was no suggestion that, in considering the import of what her Honour said at [5] of the primary judgment, her Honour’s reasons may not be read in the context of what was said at the hearing of the application itself. That is of particular relevance here where the ruling was made on 1 September 2023 and what was recorded in the primary judgment as to the reasons for rejection of evidence was fairly to be understood as a brief summary of those reasons (or, as the Cobalt entities say, “short-form reasons”).

94. That is consistent with the approach that has been adopted when construing orders of a court (see for example Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78, at 78-79; [1998] FCA 1605, where Drummond J (with whom Sundberg and Finkelstein JJ agreed) said (citing with approval Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230) that in interpreting an order of a court regard should be had to the reasons for giving the order because they form part of the context in which the order was made (see also Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317, at [133] (Santow JA); Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558, at 569; [2003] FCA 629, Allsop J (as his Honour then was))).

95. Here, we are not called upon to interpret the orders made by her Honour. Rather, considerable time was devoted in oral submissions on the appeal as to how her Honour’s reasons (at [5]) of the primary judgment were to be read. It would be artificial in the extreme (where the statement at [5] was a retrospective reference to the reasons for ruling on the leave application some months earlier) not to place what was said at [5] in the context of what happened and what was said on 1 September 2023 when the application was heard and determined.

96. As noted, I read the statement at [5] as a brief and retrospective summary of her Honour’s earlier reasons for the refusal of the application to adduce the evidence comprised by the Lord Affidavit. In a case where the adequacy of reasons had already played a large role, it is not surprising that her Honour felt the need to include a brief statement of reasons in her ultimate judgment on the remitter.

97. The context in which the statement in the primary judgment at [5] must be read includes the following: her Honour had already indicated (on 27 July 2023) that the issue to be determined was the quantification of compensation (not the identification of the boundaries of the land the subject of the land disruption claim); her Honour had accepted in Lord No 2 that “the scope of the remitter” was sufficiently broad to permit consideration of submissions relating to the quantification of the compensation payable for the heads of compensation identified in the paragraphs of Lord No 1 specified in the remitter order (Lord No 2 at [30]); and her Honour had implicitly accepted that the remitter order did not preclude the admission of further evidence insofar as her Honour had proceeded on 27 July 2023 on the basis that an application could be made to adduce such evidence.

98. During the debate on 1 September 2023 on the application for leave to adduce further evidence, her Honour was focussed on the evidence sought to be adduced and its relevance to the issues the subject of the remitter. The manner in which her Honour dealt with the second half of the Lord Affidavit in particular makes that clear but it is also evident from her Honour’s consideration of [6] of the affidavit (insofar as her Honour queried the evidence as to meetings with “legal”).

99. Her Honour’s initial inclination was to admit [8] (only) of the Lord Affidavit. It can readily be inferred that this was because it addressed the topic of the impacts on management decision-making (the relevance of that having been discussed at the 27 July 2023 initial hearing of the motion). Her Honour made reference to the type of evidence to which she was referring (in relation to quantification of the impact of the presence of the Cobalt entities on management decisions (at 1/9/23; T 3.19-41)) as I have noted earlier (namely that being the types of thought processes that would now have to be undertaken but would not have had to be undertaken on the counterfactual that the Cobalt entities were not present on the land).

100. Significantly, when Counsel for the Cobalt entities referred to the evidence (at [8]) as “more of a submission” and that she would wish to obtain expert evidence as to the reasonableness of the estimates of time involved, her Honour accepted that there was a difficulty in the way that the Lord Affidavit had been drafted (see the first paragraph of the two final paragraphs extracted at [37] above, commencing “That’s the trouble”).

101. Her Honour was (understandably) critical of “this sort of global analysis”, observing that she had that sort of evidence already before her and that the fresh evidence “has not taken it deeper than that”.

102. In those circumstances, in my opinion her Honour quite reasonably had regard to case management considerations in saying that “to the extent that I get any assistance [from the fresh evidence – in context this must be a reference to [8]], that is outweighed by the need for a response”. That was a relevant factor to take into account bearing in mind the time and expense that had already been incurred to date; and noting that the remitter order was in December 2022 and her Honour was faced in September 2023 with the potential for further delay and, no doubt, a contested hearing if the foreshadowed expert evidence was adduced in response to the Lord Affidavit.

103. Pausing here, I note that Mr Lord says that the primary judge did not reject his evidence as a result of the exercise of any case management powers; rather, he maintains that it was rejected based upon a misconstruction of the order for remittal. In this regard, Mr Lord: emphasises the express reasons given by her Honour at [5] and the lack of any reference there to case management considerations as a basis for rejecting the Lord Affidavit; says that the passages of the transcript relied upon by the respondents were not in the nature of ex tempore reasons; and says that even if the statements appearing throughout the course of argument on 1 September 2023 were understood as ex tempore reasons, they are consistent with his characterisation of the basis upon which the evidence was rejected.

104. I place weight on the fact that it was against the background set out above of what occurred on 1 September 2023 (and her Honour’s express observation that she did not think she would be assisted by this evidence) that her Honour made the statement in the second of those final two paragraphs of the transcript extracted at [37] above, which culminated in her refusal of leave to adduce the evidence.

105. In saying that “it appears that the majority, … if not all, of the material that is in the affidavit is either before me insofar as it is relevant or this affidavit deals with matters that aren’t the subject of the remitter”, it can comfortably be understood that her Honour: first, was not suggesting that the whole of the Lord Affidavit could be so described (hence the reference to “the majority”); second, when referring to evidence that was already before her, may well have been referring to evidence such as the video site inspection and the evidence of Mr Ivey (to which her Honour had referred in the course of debate on 27 July 2023); and, third, when referring to “matters that aren’t the subject of the remitter”, was referring to those parts of the Lord Affidavit that dealt with issues such as livestock and land disturbance that her Honour considered went to the identification of the boundaries (not quantification of the compensation for land disturbance).

106. Thus, when her Honour referred at [5] to the rejection of the evidence because it was “beyond the scope” of the remitter, her Honour was in my opinion not suggesting that she construed the remitter order as precluding the reception of further evidence. Rather, her Honour had drawn a clear distinction between identification of the boundaries of the damages the subject of the compensation for financial losses (which her Honour had already determined and which had not been disturbed on appeal) and quantification of the compensation.

107. Understood in that way (and in my opinion that is the only sensible understanding of her Honour’s reasons in circumstances where, had her Honour considered that the remitter order prevented the receipt of evidence, it seems inconceivable that her Honour would have made directions to permit, and entertained, the application for further evidence in the first place), there was no error in the construction of the remitter order.

108. I should note that the Cobalt entities, in support of such a conclusion, have referred to the following that occurred in the course of argument: her Honour’s statement that she did not see that the Lord Affidavit helped her in quantifying “the impact of Cobalt activities on management”; the fact that her Honour noted that evidence about “worker rates” (referring to Mr Lord’s affidavit at [7]) was already before the court in the expert evidence of Mr Ivey, which Mr Lord’s counsel accepted was already in evidence and sufficient to provide reasons, and said that the rates were “pretty comparable” to those put forward in the Lord Affidavit; her Honour’s reference to the evidence that already addressed damage and impact to the livestock and the land in materials adduced in Lord No 1; and the further specific attention given by her Honour to the estimates in the Lord Affidavit at [8], which Counsel for the Cobalt entities submitted would require a response if admitted.

109. Those matters reinforce the conclusions I have reached.

110. Thus I have concluded that no error of law has been established in this regard.

Alleged error as to construction of s155(6A) of the Mining Act

111. The second alleged error can be disposed of more quickly. I do not accept that “may” in s 155(6A) of the Mining Act imposed an obligation on the primary judge to give leave for the fresh evidence to be adduced (and until leave was given to adduce the evidence, it was not before her Honour to be considered). Nor do I consider that s 155(6A) of the Mining Act imposes some mandatory starting point, the departure from which must be justified.

112. The Cobalt entities point out that s 155(6) of the Mining Act provides that the LEC has all of the functions of an arbitrator in addition to its other functions and that the reference to function includes power, authority and duty (Dictionary, Mining Act). Thus the Cobalt entities submit that the LEC, in the conduct of proceedings of this character in Class 8 of its jurisdiction, has (among other powers and duties) the powers conferred by Part 6 of the Civil Procedure Act, including the power to give directions as to the conduct of the hearing (s 62) and as to practice and procedure generally (s 61), applied according to the guiding principles in Division 1 (ss 56-60).

113. The Cobalt entities say that the text of s 155(6A) makes it clear that the provision does not require the LEC to consider all material proffered by a party seeking a review of an arbitrator’s determination; rather, it provides that a review is to be by way of rehearing and permits fresh material to be given and taken into consideration.

111. I accept the submission of the Cobalt entities that the word “may” in the phrase “may be given and taken into consideration” in s 155(6A) is not apt to impose an obligation upon a court to receive all material sought to be adduced by a party; rather, it means that the court, when exercising its other functions in Class 8 proceedings (including functions and powers under the Civil Procedure Act, the UCPR and the Evidence Act 1995 (NSW)) may exercise its discretion as to whether to grant leave to adduce the material, and whether to admit the material into evidence and take it into account.

112. The Cobalt entities submit that s 155(6A) does not expressly or impliedly “sweep away” the capacity of the primary judge to make case management decisions about the extent of the further material (if any) permitted to be adduced at the hearing of the remitted issue. (In reply submissions, Mr Lord emphasises that he does not contend for an unqualified construction of s 155(6A) that “sweeps away the capacity of the primary judge to make case management decisions” or obliges the LEC to consider fresh evidence in all cases regardless of any case management considerations. Rather, he says that his contention is that, in refusing to accept Mr Lord’s evidence based upon a misconstruction of the remitter order, her Honour erred on a question of law and constructively failed to exercise her jurisdiction under s 155.)

113. A further difficulty that the Cobalt entities identify with Mr Lord’s contention in this regard is that no submission was made to the primary judge that s 155(6A) required the court to consider the Lord Affidavit, nor was it submitted to her Honour that “in proffering the Lord Affidavit, Mr Lord sought to engage s 155(6A) and have the LEC take his fresh evidence into account” (as is now argued). The Cobalt entities note that the submission made on behalf of Mr Lord to her Honour was that the decision about allowing further evidence was “a matter for the Court”, referring to authorities concerning the Court’s discretion to permit (or to refuse) further evidence to be adduced on remitter (and see similar submissions made to her Honour by the Cobalt entities as to the discretion as to the application to adduce further evidence). The Cobalt entities say that Mr Lord is bound by his conduct of the case and should not be permitted to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when there was an opportunity to do so.

114. I note that in reply submissions Mr Lord submits that it was not necessary to make a specific submission to the primary judge that her Honour was “bound to entertain any evidence sought to be adduced”. Mr Lord says that he made a formal application to adduce evidence in a proceeding under s 155 to which s 155(6A) clearly applied, which was rejected by the primary judge for the reasons given at [5] and that her Honour proceeded to determine the review in the absence of the evidence.

115. I consider that, on the proper construction of s 155(6A), there was no constructive failure by the primary judge to exercise her jurisdiction under s 155 of the Mining Act. This second asserted error is also not established.

1. Whether, if error be established, the matter should be remitted

119. The third issue raised by Mr Lord (as to remitter) does not arise in light of the conclusions I have reached above.

120. I note for completeness that the Cobalt entities submitted that even if it were to be found that the primary judge improperly rejected the evidence in the Lord Affidavit, the matter should not be remitted having regard to r 51.53(1) of the UCPR (that a new trial must not be ordered (on any question) “unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned”). The Cobalt entities, as already indicated, have submitted that there has been no substantial wrong or miscarriage in the present case. Mr Lord, on the other hand, submits that the evidence that was rejected (here referring to [8]) was material to her Honour’s decision and affected the outcome of the review because it went to the central issue of financial impact to Mr Lord, which was determined adversely to Mr Lord in the absence of his evidence.

121. As to the suggestion that the evidence was not material because Mr Lord’s Counsel made submissions on the anticipated time to be spent on management considerations, Mr Lord notes that the submissions made by his Counsel necessarily proceeded upon the limited evidential foundation that was left after his evidence in the Lord Affidavit was rejected. Complaint is made that the Cobalt entities repeatedly contended before her Honour that there was an absence of evidence on management activities. Mr Lord says that, if his evidence had been admitted, it would have provided a robust evidential foundation for the submissions made by his Counsel in respect of his evidence (which were not accepted) and would also have provided evidence of the time spent by Mr Lord’s son on management activities.

122. As noted above, it is not necessary to consider further submissions as to the prospect of a remitter had error been established.

Conclusion

123. For the above reasons I have concluded that the appeal should be dismissed. I see no reason why costs should not follow the event. The orders that I propose are therefore:

1. Appeal dismissed with costs.

2. Order the appellant to pay the respondent’s costs of the appeal.

124. ADAMSON JA: I agree with Ward P.

125. PRESTON CJ of LEC: I agree with Ward P.

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Decision last updated: 18 December 2024