Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd

Case •

[2017] NSWLEC 184

•

20 December 2017

No judgment structure available for this case.

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2017] NSWLEC 184
Hearing dates:19 December 2017
Date of orders: 20 December 2017
Decision date: 20 December 2017
Jurisdiction:Class 4
Before: Preston CJ
Decision:

(1) The applicant is granted leave to amend its summons in the form annexed to the notice of motion filed 3 November 2017 and as indicated to the Court on 19 December 2017.
(2) The applicant is granted leave to serve expert evidence of Dr Cherie McCullough.
(3) The costs of the notice of motion be costs in the proceedings.

Catchwords: PRACTICE AND PROCEDURE – civil enforcement and judicial review proceedings – conditions of project approval requiring rehabilitation of open cut coal mine – motion to amend summons and seek directions for expert evidence – leave to amend summons granted – whether expert evidence necessary or admissible – judicial review for lack of jurisdiction and manifest unreasonableness – expert evidence potentially relevant and admissible – civil enforcement of breaches of conditions – expert evidence sought to establish breaches – leave granted to serve expert evidence
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 75J, 76A(1)
Evidence Act 1995 s 192A
Uniform Civil Procedure Rules 2005 r 31.19(1)
Cases Cited: 4nature Inc v Centennial Springvale Pty Ltd (2017) 224 LGERA 301; [2017] NSWCA 191
Arnold v Minister administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73
Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707
Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151
Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567
Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24
Friends of King Edward Park Inc v Newcastle City Council (2012) 194 LGERA 226; [2012] NSWLEC 113
McCormack v Commissioner of Taxation (Cth) (2001) 114 FCR 574; [2001] FCA 1700
Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195
Telstra Corporation v ACCC (2008) 176 FCR 153; [2008] FCA 1758
The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407; [1944] HCA 42
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8
ULV Pty Ltd v Scott (1990) 19 NSWLR 190
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Texts Cited: N Williams SC and A Shearer, ‘Evidence in Public Law Cases’ in N Williams (ed) Key Issues in Judicial Review (2014) 131
Category:Principal judgment
Parties: Muswellbrook Shire Council (Applicant)
Hunter Valley Energy Coal Pty Ltd (First Respondent)
The Secretary, Department of Planning and Environment (Second Respondent)
Representation:

Counsel:
Mr P Tomasetti SC and Mr R Lovas (Applicant)
Mr R Lancaster SC and Ms J Taylor (First Respondent)
Mr N Kelly (Second Respondent)

  Solicitors:
Moray & Agnew Solicitors (Applicant)
King Wood & Mallesons (First Respondent)
Louise McAndrew, Department of Planning and Environment (Second Respondent)
File Number(s):2017/236338
Publication restriction:Nil

Judgment

The rehabilitation of an open cut mine

  1. Muswellbrook Shire Council (‘the Council’) brings proceedings in class 4 of the Court’s jurisdiction concerning the rehabilitation of the large, open cut, Mt Arthur Coal Mine near Muswellbrook.

  2. Coal mining began at the Mt Arthur Coal Mine in the early 1960’s. The mine has been modified many times. The mine is currently operated by Hunter Valley Energy Coal Pty Ltd (‘HVEC’).

  3. In 2010, the Minister for Planning granted a project approval under the then Part 3A of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) to consolidate its open cut operations and activities at the Mt Arthur Coal Mine (‘the Project Approval’).

  4. On 26 September 2014, the Planning Assessment Commissioner (‘PAC’), as delegate of the Minister for Planning and Infrastructure, approved a project modification pursuant to s 75J of the EPA Act (‘the Modified Project Approval’). Condition 41A and 42 of Schedule 3 of the Modified Project Approval are as follows:

“41A. The Proponent shall rehabilitate the site to the satisfaction of the DRE [Division of Resources and Energy, within the Department of Trade and Investment, Regional Infrastructure and Services]. The rehabilitation must comply with the objectives in Table 14, and be consistent with the rehabilitation plan shown in Appendix 7 and the final landform plan shown in Appendix 8.

42. The Proponent shall prepare a revised Rehabilitation Strategy for the Mt Arthur mine complex to the satisfaction of the Secretary. This strategy must:

a) be prepared in consultation with the DRE and Council, and be submitted to the Secretary for approval by the end of September 2015, unless otherwise agreed with the Secretary;

b) investigate options for:

• increasing the area to be rehabilitated to woodland on the site;

• reducing the size of the final voids on site; and

• beneficial future land use of disturbed areas, including voids;

c) describe and justify the proposed rehabilitation plan for the site, including the final landform and land use; and

d) include detailed rehabilitation objectives for the site that comply with and building on the objectives in Table 14.

Note: The strategy should build on the rehabilitation plan in Appendix 7.”

  1. Table 14, referred to in conditions 41A and 42, provides as follows:

Feature

Objective

Mine site (as a whole)

• Safe, stable and non-polluting

• Final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms

  1. On 26 May 2017, HVEC prepared a rehabilitation strategy. HVEC indicated that the rehabilitation strategy was prepared to address condition 42 of the Modified Project Approval. The rehabilitation strategy sets out the overall rehabilitation approach, which includes using “Geofluv” software (a commercial brand name for a specific fluvial geomorphic landform design software) to design the rehabilitation landforms. The rehabilitation strategy provides that the Geofluv approach would be applied to emplacements where the design should meet requirements for stability, rehabilitation and economic and approved land uses, but it would not necessarily be applied to all emplacements. In particular, the rehabilitation strategy provides that neither pre-Project Approval nor pre-Modified Project Approval emplacements will be retrospectively modified to include Geofluv design or other natural relief.

  2. The rehabilitation strategy was submitted to, and approved by, the Secretary of the Department of Planning and Infrastructure on 7 June 2017.

The Council brings civil enforcement and judicial review proceedings

  1. The Council is concerned that rehabilitation is not being carried out by HVEC in accordance with condition 41A and 42 of the Modified Project Approval. By its summons, the Council brings proceedings by way of civil enforcement and judicial review.

  2. The civil enforcement proceedings are to restrain and remedy alleged breaches of s 76A(1) of the EPA Act by HVEC carrying out development not in accordance with condition 41A and 42 of the Modified Project Approval.

  3. First, the Council contends that HVEC has not prepared a rehabilitation strategy in accordance with condition 42. The Council contends that the rehabilitation strategy that HVEC did prepare and the Secretary approved was not in fact or law a rehabilitation strategy for the purposes of condition 42(d). The Council contends that the rehabilitation strategy prepared by HVEC fails to include detailed rehabilitation objectives for the site that comply with and build on the objective in Table 14 of having final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms in respect to the mine site (as a whole). A particular concern is the pre-Project Approval and pre-Modified Project Approval emplacements. The Council refers to the statements in the rehabilitation strategy that “pre-Project Approval emplacements will not be retrospectively modified to include Geofluv design or other natural relief” (pp 8 and 14 of the rehabilitation strategy). The Council contends that this shows that the rehabilitation strategy has not been prepared in compliance with the objectives for rehabilitation of the mine site in Table 14 of having final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms.

  4. Second, the Council contends that HVEC has been and is rehabilitating the site in breach of condition 41A. The primary reason is that the final landforms of the pre-Project Approval emplacements have not been and will not be rehabilitated in compliance with the objectives in Table 14, including that the final landforms be designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms. This claim is raised in the amended para 11(b) of the amended summons, although it is not as clearly pleaded as it could have been. The Council said it would clarify this amended pleading if it is given leave to amend.

  5. In these two ways, by carrying out the development not in accordance with conditions 42 and 41A of the Modified Project Approval, the Council contends HVEC is carrying out development in breach of s 76A(1) of the EPA Act.

  6. The judicial review proceedings are that the Secretary’s opinion of satisfaction under condition 42 with the rehabilitation strategy prepared by HVEC was invalid. The Council raised one ground in the summons but now seeks leave to add other grounds.

  7. The original ground is that the rehabilitation strategy prepared by HVEC did not include detailed rehabilitation objectives for the site that comply with and build on the objectives in Table 14, including having final landforms designed to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms in respect to the mine site (as a whole). In particular, the Council contends that the rehabilitation strategy only provides for rehabilitation of post-Project Approval emplacements and not pre-Project Approval emplacements in accordance with the objectives in Table 14. The pre-Project Approval emplacements cover a considerable area of the mine site. The rehabilitation strategy is therefore not a rehabilitation strategy for the mine site (as a whole). The Council contends there was not a rehabilitation strategy for the purposes of condition 42(d) and hence there was no jurisdiction for the Secretary to form an opinion of satisfaction with the rehabilitation strategy. The purported satisfaction of the Secretary with the submitted rehabilitation strategy was void.

  8. The new grounds are that any satisfaction of the Secretary with the rehabilitation strategy was formed by failing to take into account a relevant matter or was manifestly unreasonable in the Wednesbury sense. The Council has not particularised in the amended summons the ways in which it says the Secretary’s decision to be satisfied with the rehabilitation strategy was manifestly unreasonable. In submissions, the Council proffered two ways, which build upon its earlier arguments. First, the Council contends that it was manifestly unreasonable for the Secretary to accept a rehabilitation strategy that only addresses rehabilitation, in compliance with the objectives in Table 14, of post-Project Approval emplacements and not pre-Project Approval emplacements as well. This is not a rehabilitation of the mine site as a whole, which is what conditions 42 and Table 14 require. Second, the Council says that the rehabilitation strategy is replete with statements that the rehabilitation measures proposed are preliminary and provisional and may be changed. The Council contends that such a “strategy to strategise” about the rehabilitation of the mine site is not a rehabilitation strategy for the purposes of condition 42. It was manifestly unreasonable for the Secretary to be satisfied that it was a rehabilitation strategy that complied with condition 42.

The Council seeks leave to amend its summons

  1. The Council, by notice of motion filed on 3 November 2017, seeks leave to amend the summons to raise the new grounds. HVEC and the Department of Planning and Environment do not oppose leave being granted to the Council to amend its summons in the form annexed to the notice of motion. HVEC was not in a position to comment on the further amendment raised at the hearing of the motion to clarify the claimed breach of condition 41A. HVEC seeks an order that the Council pay its costs thrown away by the amendment. The Department did not make a submission about costs. The Council submits the appropriate order is that the costs be costs in the proceedings.

  2. It is convenient to address this issue of the amendment of the summons at the outset. I consider it is appropriate to grant leave to the Council to amend its summons, firstly, as sought in the form of amended summons attached to the notice of motion and, secondly, to clarify the claimed breach of condition 41A. The Council should give particulars of its new grounds of judicial review of failure to consider a relevant matter and manifest unreasonableness. In relation to costs, I consider in the circumstances that the appropriate costs order is that costs be costs in the proceedings, rather than making a special costs order for this interlocutory application.

The Council seeks directions to adduce expert evidence

  1. The Council also seeks, in its notice of motion, directions under r 31.19(1) of the Uniform Civil Procedure Rules 2005 concerning adducing expert evidence. Although the notice of motion sought broader directions, the Council on the hearing of the motion confined the direction it now seeks to be that it be permitted to serve expert evidence. The expert evidence proposed is from a mine rehabilitation engineer, Dr Cherie McCullough.

  2. The Council accepts that the appropriate procedure should be for the Council to serve Dr McCullough’s evidence on the respondents. The respondents can then consider whether they wish to raise any issue as to the admissibility of the evidence (including by way of an application under s 192A of the Evidence Act 1995 for an advance ruling) or to raise any discretionary considerations as to the use of the evidence. The respondents could also seek directions permitting them to call expert evidence in response to Dr McCullough’s evidence, if they choose to do so.

  3. The Council contends that the proposed expert evidence would assist in five ways. First, the expert evidence is needed for the Council to establish its civil enforcement claims that HVEC is in breach of conditions 41A and 42 of the Modified Project Approval.

  4. The Council contends that the mine site as a whole has not been and will not be rehabilitated to comply with the objectives in Table 14 (as required by condition 41A) if it is rehabilitated in accordance with the rehabilitation strategy prepared by HVEC and approved by the Secretary. The mine site as a whole will not be left safe, stable and non-polluting and will not have final landforms incorporating natural micro-relief and natural drainage lines to integrate with the surrounding landforms. As I have earlier explained, the Council is particularly concerned that the pre-Project Approval emplacements have not been and will not be rehabilitated to comply with the objectives in Table 14. To make out these complaints, the Council says it needs evidence from a mine rehabilitation engineer. Dr McCullough will prove facts and opine why the rehabilitation strategy, particularly insofar as it proposes to do nothing to any emplacements that predate the Modified Project Approval, will mean that the rehabilitation of the site will not comply with the objectives of Table 14, in breach of condition 41A.

  5. To establish the claimed breach of condition 42, the Council says it needs to establish that the rehabilitation strategy prepared by HVEC is not a rehabilitation strategy that complies with the matters in condition 42(d). The Council’s claim is that HVEC is in breach of condition 42 by not having prepared a rehabilitation strategy that complies with condition 42(d). This claim does not depend on whether or not the Secretary was satisfied with the rehabilitation strategy prepared by HVEC. The Council contends that condition 42 requires HVEC to prepare a rehabilitation strategy that objectively complies with condition 42(d) and that the Secretary can only be satisfied about such a complying rehabilitation strategy. The Council says that Dr McCullough’s evidence can assist in explaining why the rehabilitation strategy does not comply with condition 42(d) and the objectives in Table 14. This cannot readily be done by a simple construction and comparison of the text of the rehabilitation strategy and conditions of the Modified Project Approval. Technical terms and concepts are involved, the understanding of which will be assisted by Dr McCullough’s evidence.

  6. Second, the Council submits that the expert evidence will assist it to establish its first ground of judicial review, in the same way that the evidence will assist the Council to establish the breach of condition 42. This ground of review contends that there was not a rehabilitation strategy for the purposes of condition 42 about which the Secretary could be satisfied. The Council contends that condition 42 establishes jurisdictional facts (the matters in paragraphs (a) to (d)), which are essential preliminaries to the Secretary being able to be satisfied with the rehabilitation strategy. If the matters in paragraphs (a) to (d) of condition 42 are jurisdictional facts, evidence of the existence or non-existence of those matters is admissible in the Court: see Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 at [36]. A court which is reviewing a decision with respect to a jurisdictional fact must determine the matter on the evidence before the court and not on the evidence before the primary decision-maker: Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [105].

  7. The Council accepts that its construction of condition 42 is contested by the respondents. HVEC and the Department contend that whether the rehabilitation strategy prepared by HVEC complies with condition 42 is a matter for the Secretary to be satisfied about. HVEC and the Department contend that the condition sets a subjective and not an objective test for the compliance of the rehabilitation strategy with the matters in paragraphs (a) to (d) of condition 42. Nevertheless, the Council contends that this debate about the proper construction of the condition can await the hearing of the proceedings. The Council contends, however, that it must be able to adduce evidence to prove its case if its construction of condition 42 were to be accepted by the Court.

  8. Third, the Council submits that expert evidence is needed in the construction and application of conditions 41A and 42. The Council refers to numerous words and phrases that may not bear their ordinary English meaning, but rather a technical meaning. Examples are “final landforms” and “natural micro-relief”. The Council submits that expert evidence of a mine rehabilitation engineer may assist in understanding the technical meaning of these words: Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 at [128]. Evidence as to the meaning of technical terms used in an administrative decision (in this case, the Modified Project Approval) is admissible so that the Court is placed in the context of understanding the natural and ordinary meaning of those words as they would be understood by persons familiar with their use: Telstra Corporation v ACCC (2008) 176 FCR 153; [2008] FCA 1758 at [48].

  1. Fourth, the Council contends that the expert evidence will assist it to establish its ground of judicial review of manifest unreasonableness. Courts have accepted that expert evidence can be admitted in relation to the ground of manifest unreasonableness: see Arnold v Minister Administering the Water Management Act 2000 (No 6) at [124], [129]-[139] and cases cited. The Council contends that assessing the unreasonableness in the Wednesbury sense of the Secretary’s satisfaction with the rehabilitation strategy will require the Court to receive evidence on what the rehabilitation strategy proposes as the end result for this mine site and compare that with what terms of conditions 41A and 42 of the Modified Project Approval require.

  2. Fifth, the Council contends that HVEC’s arguments on this motion raise a new factual dispute not previously raised in HVEC’s response to the summons. HVEC submits that pre-Project Approval emplacements have already been rehabilitated. HVEC contends that conditions 41A and 42 do not apply to pre-Modified Project Approval emplacements because, at the time those conditions were imposed, those emplacements had already been rehabilitated. The Council contests this contention, both legally and factually. Legally, the Council contests that conditions 41A and 42 do not apply to emplacements in existence before the Project Approval was modified in 2014. Factually, the Council contests that emplacements in existence before the Modified Project Approval had already been rehabilitated or rehabilitated in accordance with the objectives of Table 14. Dr McCullough’s evidence would establish these facts.

  3. For these reasons, the Council submits that the Court should grant leave to the Council to serve the expert evidence of Dr McCullough.

The respondents oppose leave to adduce expert evidence

  1. The respondents oppose leave being granted to the Council to serve the expert evidence of Dr McCullough. The primary basis for their opposition is that expert evidence is unnecessary and inadmissible.

  2. HVEC submits that the proposed expert evidence is unnecessary and inadmissible for three reasons. First, the primary issue in contention is a straightforward question of construction of a condition of consent (condition 42) concerning whether retrospective rehabilitation is required – that is, whether the consent requires HVEC to rehabilitate again various areas of land that were previously mined and rehabilitated. Expert evidence is not admissible and will not assist with this point of construction.

  3. HVEC submits that the Council’s construction of condition 42 is “obviously untenable”. The Council contends that the matters in paragraphs (a) to (d) of condition 42 are jurisdictional facts that must objectively exist before the Secretary can be satisfied. HCEC disputes this construction. HVEC contends that condition 42 is premised on the satisfaction of the Secretary: the condition cannot be either complied with or breached without the formation of a particular state of mind (satisfaction) by the Secretary. HVEC submits that condition 42 required the Secretary subjectively to evaluate and decide whether she was satisfied that the rehabilitation strategy prepared by HVEC addressed the matters in paragraphs (a) to (d) of condition 42. HVEC contends that the Council can only challenge the satisfaction of the Secretary about these matters on grounds such as that it was not reasonably open in the circumstances.

  4. On this construction of condition 42 and these restricted grounds of challenge, the proposed expert evidence is unnecessary.

  5. Secondly, HVEC contends that because the relevant condition of consent (condition 42) depends on the Secretary’s state of satisfaction, any evidence would need to be restricted to the fact of whether the Secretary was satisfied. This can be demonstrated on the documents. Expert evidence is not relevant to that fact. The general principle is that the only admissible documents in judicial proceedings are the documents that were, or should have been, before the decision-maker when she made her decision: Friends of King Edward Park Inc v Newcastle City Council (2012) 194 LGERA 226; [2012] NSWLEC 113 at [74].

  6. Expert evidence about the subject matter of the issues to be considered by the Secretary (in paragraphs (a) to (d) of condition 42) is inadmissible for almost all grounds of judicial review. Although expert evidence may in some cases be admissible to assist the court in understanding the technical nature of the material, that is not necessary for the just, quick and cheap disposition of these proceedings. It is not enough that the evidence might be relevant and admissible, it needs to be reasonably required to resolve the proceedings having regard to the admonition of just, quick and cheap: Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195 at [35].

  7. Further, expert evidence is not generally admissible on the larger question of whether manifest unreasonableness has been established. HVEC acknowledges that in some “exceptional” circumstances, expert evidence may be admitted “at the edge of judicial review, at the high and usually insurmountable barrier of the ground of manifest unreasonableness, if it is relevant to the proposition that, on the material before the decision-maker, the decision was manifestly unreasonable”: Arnold v Minister Administering the Water Management Act 2000 (No 6) at [124]; Friends of King Edward Park Inc v Newcastle City Council at [75]; ULV Pty Ltd v Scott (1990) 19 NSWLR 190 at 204.

  8. However, HVEC submits that the particular ways in which the Council puts its challenge on the ground of manifest unreasonableness does not reasonable require expert evidence. The first way is that the rehabilitation strategy, on the Council’s argument, does not propose rehabilitation of the whole mine site, only post-Project Approval emplacements, contrary to what condition 42 requires. HVEC submits this argument can be resolved by a simple construction and comparison of the rehabilitation strategy and condition 42 of the Modified Project Approval. Expert evidence is not required and will not assist. The second way is that the rehabilitation strategy is uncertain and defers fixing the rehabilitation required. This argument too can be resolved by construction of the rehabilitation strategy and the condition. Expert evidence will not assist.

  9. Thirdly, the Council’s proposed issues for expert evidence (in the schedule to its notice of motion) are unnecessarily broad and would cause an unjustified increase in the duration and cost of the proceedings. The breadth of the questions proposed by the Council suggests that the proposed expert evidence will impermissibly address the merits and substance of the rehabilitation strategy. This will not assist the Court. HVEC noted that the Council has recently provided a draft outline of the proposed expert evidence. However, that outline addresses other matters than what was identified in the schedule and is only a draft. The potential remains for the expert evidence to range widely and address the merits.

  10. The Department opposed the proposed expert evidence for similar reasons to those advanced by HVEC. The Department also contested the Council’s construction of condition 42 and the Council’s claims based on that construction that the rehabilitation strategy’s compliance with the matters in paragraphs (a) to (d) of condition 42 was a jurisdictional fact that must exist to enliven the jurisdiction of the Secretary to be satisfied with the rehabilitation strategy. The Department contends that judicial review of the exercise of a power conditioned on the attainment of a state of satisfaction is confined to determining whether the state of satisfaction was in fact reached, on a correct understanding of the law, and was not unreasonable in the legal sense: The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42 and Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24. The state of satisfaction reached by a decision-maker is not a fact to be determined by a reviewing court, it is a fact to be determined by the decision-maker. The state of satisfaction is the “jurisdictional fact” necessary for the exercise of the relevant power: 4nature Inc v Centennial Springvale Pty Ltd (2017) 224 LGERA 301; [2017] NSWCA 191 at [42]. The scope for expert evidence on this ground of review is, therefore, extremely confined.

  11. The Department submitted that expert evidence is not necessary to understand the meaning of many of the words and phrases in the conditions. The Court is a specialist court and is unlikely to be assisted by expert evidence on the meaning of the word “landform” or “final landform”. The Department accepted, however, that the phrase “natural micro-relief” is a term referring to particular technical processes and the Court may be assisted by such evidence.

  12. The Department submitted that expert evidence is highly unlikely to assist in determining the judicial review claim alleging Wednesbury unreasonableness. Conflicting expert evidence raises particular complexities in a judicial review case alleging Wednesbury unreasonableness: N Williams SC and A Shearer, ‘Evidence in Public Law Cases’ in N Williams (ed) Key Issues in Judicial Review (2014) 131 at 143; Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151 at 166 per Gummow J, undisturbed on appeal: Bienke v Minister for Primary Industries and Energy (1996) 63 FCR 567.

Direction to serve expert evidence

  1. I consider leave should be granted to the Council to serve the expert evidence of Dr McCullough addressing the matters raised by the Council. First, the Council has now better articulated its claims for civil enforcement and judicial review and the uses to which it proposes to put the expert evidence to prove those claims. The use of the expert evidence will not be restricted to explaining the meaning of technical words and terms in the conditions and establishing the manifest unreasonableness ground of review. HVEC and the Department’s objections were primarily focused on these two uses of the evidence. However, the expert evidence will, on the Council’s case, be useful to establish the civil enforcement claims that HVEC is in breach of conditions 41A and 42 and the original ground of judicial review of the alleged lack of jurisdiction of the Secretary to form an opinion of satisfaction about the rehabilitation strategy.

  2. As was noted in Arnold v Minister Administering the Water management Act 2000 (No 6) at [123], “the admissibility of evidence not actually or constructively before the decision-maker on an application for judicial review of an administrative decision depends on the ground of review, the relevant issue and the nature of the evidence.” See also Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540; McCormack v Commissioner of Taxation (Cth) (2001) 114 FCR 574; [2001] FCA 1700 at [38]; Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707 at [459]. There is no general rule against the admission of expert evidence in judicial review cases: “everything depends upon the grounds of review and the circumstances of the case”: Australian Retailers Association v Reserve Bank of Australia at [459].

  3. One ground of review on which the Council wishes to adduce expert evidence is that of manifest unreasonableness. As all parties have acknowledged, there are circumstances where it can be appropriate for expert evidence to be admitted to establish the ground of manifest unreasonableness. Examples where courts have admitted evidence for this purpose are collected in Arnold v water Management Act 1000 (No 6) at [124]-[139].

  4. The Council, in its articulation of the uses of the proposed expert evidence, has sought to fit the evidence within some of these circumstances and thereby establish that it is possible to argue that the evidence will be relevant and admissible. The Council will need to be careful and discriminating in selecting the matters to be addressed in the expert evidence. The evidence needs to address only matters where expert evidence is relevant and admissible to establish manifest unreasonableness at law. As HVEC has pointed out, expert evidence may not be required for the Council to establish manifest unreasonableness in the two ways it has articulated so far. However, the question of whether the expert evidence obtained by the Council meets the criteria of relevance and admissibility can by determined later when the Council seeks to adduce the expert evidence.

  5. Expert evidence is more likely to be admitted to prove the judicial review ground that the decision-maker lacked jurisdiction to make the decision because jurisdiction was dependent on an actual state of facts that did not exist or the decision-maker based the decision of a finding of a particular fact that did not exist: see Attorney General (NT) v Minister for aboriginal Affairs at 540; McCormack v Commissioner of Taxation at [38]; Australian Retailers Association v Reserve Bank of Australia at [458]. In this case, the Council contends that the evidence will be directed to establishing that, on the true facts, the opinion of satisfaction with the rehabilitation strategy formed by the Secretary was one which could not have been lawfully made. It is true that the respondents contest that condition 42 contains any jurisdictional fact, the existence of which is necessary to enliven the jurisdiction of the Secretary to form the opinion of satisfaction with the rehabilitation strategy prepared by HVEC. If the respondents’ construction be correct, the evidence will not assist. But if the Council’s construction be correct, then the evidence might assist.

  6. The chariness in admitting expert evidence in judicial review proceedings does not carry over into civil enforcement proceedings to restrain and remedy a statutory breach. In this case, the Council claims that HVEC is carrying out development not in accordance with conditions of consent and hence in breach of s 76A(1) of the EPA Act. The evidence necessary to establish the breach depends on the terms of the conditions of consent. On the Council’s construction of the conditions, the action HVEC needs to take in order to comply with the conditions is to prepare a rehabilitation strategy for the site, and to carry out rehabilitation of the site, that is consistent with certain rehabilitation objectives, including designing final landforms to incorporate natural micro-relief and natural drainage lines to integrate with surrounding landforms. The Council needs to adduce evidence to establish that HVEC has not taken this action (and hence complied with these conditions). The Council says the proposed expert evidence will do this. The respondents’ arguments, focused on the Council’s judicial review claims, do not address these civil enforcement claims of the Council.

  7. Second, the direction now sought by the Council is simply for leave to serve the expert evidence on the respondents. The Council is not seeking an advance ruling that the expert evidence be admitted into evidence. As the Council noted, once the respondents have the opportunity to review the expert evidence, they can make whatever application they wish concerning the expert evidence. They can also object to the Council adducing the expert evidence at the hearing of the proceedings. This will be the better occasion on which to determine the admissibility of the expert evidence. HVEC and the Council can make the submissions they have made on this motion that the expert evidence (or any part of it) should not be admitted to prove any one or more of the claims of the Council.

  8. Third, I do not consider that granting leave to the Council to serve the expert evidence of Dr McCullough will be contrary to the overriding purpose of ensuring the just, quick and cheap resolution of the real issues in the proceedings. I do not accept that it will lead to the incurring of unnecessary delay or cost. The proceedings are still in the early stages of preparation for hearing. A hearing date has not yet been fixed. Making a direction for serving expert evidence will not jeopardise any timetable already set. The effect of any future directions concerning expert evidence can be addressed at that time. The additional cost associated with obtaining and adducing expert evidence needs to be considered in the context of the importance of the matters in dispute and likely cost of the proceedings in any event.

  9. In relation to the costs of the notice of motion seeking directions, the Council submits that the costs should be costs in the proceedings. HVEC submits that the Council should be ordered to pay the costs or the costs should be reserved. The Department did not make a submission about costs. As with the costs of the notice of motion seeking leave to amend the summons, I consider the appropriate order in the circumstances is that the costs be costs in the proceedings, rather than making a special order for this interlocutory application.

Orders

  1. In these circumstances, I make the following orders:

  1. The applicant is granted leave to amend its summons in the form annexed to the notice of motion filed 3 November 2017 and as indicated to the Court on 19 December 2017.

  2. The applicant is granted leave to serve expert evidence of Dr Cherie McCullough.

  3. The costs of the notice of motion be costs in the proceedings.

**********

Amendments

21 December 2017 - Amended typographical error in [35].

Decision last updated: 21 December 2017

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Statutory Material Cited

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Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8