Moore v Doyles Creek Mining Pty Ltd

[2011] NSWLEC 173

Land and Environment Court

New South Wales

Medium Neutral Citation:	Moore v Doyles Creek Mining Pty Ltd [2011] NSWLEC 173
Hearing dates:	5 October 2011
Decision date:	05 October 2011
Jurisdiction:	Class 8
Before:	Biscoe J
Decision:	Hearing dates vacated
Catchwords:	Practice and procedure:- vacation of hearing dates
Legislation Cited:	Mining Act 1992
Category:	Procedural and other rulings
Parties:	Ian Hunter Moore (First Applicant) Robyn Ann Moore (Second Applicant) Doyles Creek Mining Pty Ltd (Respondent)
Representation:	COUNSEL: Mr R Scruby (Applicants) Ms S Duggan (Respondent) SOLICITORS: Slater & Gordon (Applicants) Sparke Helmore (Respondent)
File Number(s):	80709 of 2011

Judgment

1. This is a motion by the applicants to vacate the hearing dates on 10 and 11 October 2011.

1. These are class 8 proceedings for the review of an arbitrator's determination under the Mining Act 1992 to allow access to the applicants' property for exploratory drilling. The applicants are two elderly people who operate a farm near Mudgee. The respondent has an exploration licence to engage in exploratory drilling. I am told by the applicants that the main, if not the only, factual issue is whether the risks of exploratory drilling to aquifers on the applicants' property are such that permission to drill should be refused. At the arbitration the respondent led expert evidence on this issue but the applicants did not. The applicants now wish to call expert evidence.

1. The proceedings were commended on 16 August 2011. The first return date was 29 August 2011 when directions were made for expert reports and the matter was fixed for hearing on 10 and 11 October 2011. On 31 August 2011 the applicants' solicitor telephoned two experts with a view to retaining one of them. On 9 September 2011 the applicants' solicitor wrote to two experts. One was unavailable. The other, Mr Sutherland, indicated on 20 September 2011 that he was unavailable to report within the time fixed by the Court or to attend a hearing on 10 and 11 October 2011 due to other court commitments. That is the basis on which the applicants seek vacation of the hearing dates.

1. On 21 September 2011 the applicants' solicitor signed a notice of motion for vacation of the hearing dates, which I am now hearing. For some reason it was not filed until 26 September and was not made returnable until today.

1. The respondent does not consent to vacation of the hearing dates. It submits that there were unnecessary delays by the applicants in attending to the retainer of an expert and to bringing on this notice of motion for vacating the hearing dates. I accept that there was some delay by the applicants. On the other hand, in my view, there should be taken into account the nature of the issue in the case; the short time fixed by the Court from the first return date of the originating process to the hearing date to which the applicants objected; the potential difficulty that this posed for finding a suitable available expert at short notice; the fact that the expert the applicants sought to retain cannot report within the short time frame fixed by the Court or attend on the hearing date fixed by the Court; and the importance of expert evidence to the applicants' case.

1. On balance, in my view, the hearing dates should be vacated provided that the matter can be brought on for hearing within a reasonably short time. Having indicated that view, the parties have conferred and agreed upon short minutes of order which provide that the applicants are to serve their experts report by 28 October 2011; the parties' experts are to confer and file and serve a joint report by 4 November 2011; the proceedings are fixed for hearing on 29 and 30 November 2011; and the costs of the motion and vacation of the hearing date are reserved.

1. I make orders in accordance with the short minutes of order agreed by the parties which I date, initial and place with the papers.