Lord v Broken Hill Cobalt Project Pty Ltd

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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]…

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Details
Case
[2024] NSWCA 305
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Lord (appellant) and Broken Hill Cobalt Project Pty Ltd (respondent) before the Court of Appeal of New South Wales. The core of the dispute revolved around the respondent's attempt to adduce further evidence in proceedings before the Land and Environment Court, following a remittal from the Court of Appeal. The primary judge of the Land and Environment Court had refused to grant leave to adduce this further evidence, leading to the present appeal.

The legal issues before the Court of Appeal were whether the primary judge had erred in law by refusing to admit the further evidence sought to be adduced by the respondent, and the proper construction of the remittal order made by the Court of Appeal, particularly whether the refusal to admit evidence constituted a question of law for the purposes of section 57(1) of the *Land and Environment Court Act 1979* (NSW).

The Court of Appeal dismissed the appeal, finding that the primary judge had not erred in law. The Court reasoned that the scope of the remittal order did not extend to permitting the wholesale re-opening of the case or the introduction of new evidence without proper justification. The principles applied focused on the finality of proceedings and the need for a clear basis to depart from the established evidence, particularly when the remittal was for a specific purpose. The Court held that the refusal to admit the evidence was a matter within the primary judge's discretion and was not demonstrably wrong in law.

Consequently, the Court of Appeal ordered that the appeal be dismissed with costs, and that the appellant pay the respondent’s costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed with costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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