Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd & Ors

[2020] HCATrans 73

[2020] HCATrans 073

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B64 of 2019

B e t w e e n -

OAKEY COAL ACTION ALLIANCE INC

Applicant

and

NEW ACLAND COAL PTY LTD ACN 081 022 380

First Respondent

CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND SCIENCE

Second Respondent

PAUL ANTHONY SMITH, MEMBER OF THE LAND COURT OF QUEENSLAND

Third Respondent

Application for special leave to appeal

BELL J
GAGELER J
TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO BRISBANE

ON FRIDAY, 5 JUNE 2020, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friends, MR O.R. JONES in Sydney and MR C.J. McGRATH in Brisbane, for the applicant.  (instructed by Environmental Defenders Office Ltd)

BELL J:   Mr Kirk, I might indicate to you that the audio is not strong.  Can you speak up?

MR KIRK:   Yes.

MR D.G. CLOTHIER, QC:   May it please the Court, I appear on behalf of the first respondent with MR N. ANDREATIDIS, QC.  (instructed by Clayton Utz)

BELL J:   Mr Kirk, I think the Court might be assisted if we were to hear from Mr Clothier first on this application.

MR KIRK:   If it please the Court.

MR CLOTHIER:   Thank you, your Honours.  Your Honours, it is our submission that the decision of the Court of Appeal was correct, that this is not a suitable vehicle for any special leave questions and that the questions themselves do not have sufficient prospects to warrant the grant of special leave. 

In particular, it is our submission that the applicant seeks to agitate for the first time in this Court questions that were not addressed below and, indeed, in our submission, were not put below, in circumstances where it seemingly raises the prospect and advocates for the position that the Supreme Court is in a position now to decide its contention of nullity.

The special leave application relates only to the relief that was granted by the Court of Appeal in consequence of the uncontested findings that it made in the appeal and the cross‑appeal.  On that issue, the questions before the Court of Appeal were whether it had power to and whether it ought to have summarily set aside two decisions that were not the subject of either the appeal or the cross‑appeal or, indeed, of any other form of proceeding at that stage.

The first respondent submitted below that those questions should both be answered in the negative and that any challenge should be by way of separate proceedings.

BELL J:   Mr Clothier, can I just understand this, the Court of Appeal at the conclusion of the reasons of what – of the decision, I think it was of 18 September, in the conventional way, indicated the orders that were to be made in consequence of the findings that their Honours recorded there.

MR CLOTHIER:   Yes.

BELL J:   Subsequently, their Honours, it seems, received some written submissions and departed from the orders that had been foreshadowed in the substantive judgment. 

MR CLOTHIER:   Yes, your Honour, the sequence was that upon being notified that judgment was delivered the party had jointly approached the court not to make orders but deliver its reasons and then, at the delivery of reasons, directions were made for short written submissions as to the appropriate orders in light of the reasons.

BELL J:   Is part of your complaint that in the written submissions that followed the delivery of the court’s reasons in September, the applicant did not advance the contentions that it agitates on this application?

MR CLOTHIER:   That is so, your Honour.  If I can address your Honours briefly on that point; two core special leave questions are said to be, in effect, whether the decision of President Kingham is a nullity notwithstanding the orders of Justice Bowskill that were made at the trial, and a second special leave question is said to be whether the orders of Justice Bowskill could, as the applicant’s put it, enlarge the jurisdiction of the Land Court in some way.

On the first of those questions, the submissions of the applicant below certainly used the word invalidity in a brief reply submission.  But the applicant did not contend, below, that there was a jurisdictional error, notwithstanding the orders of Justice Bowskill, such that, regardless of the orders of Justice Bowskill, the decisions of President Kingham or of the second respondent were of no legal effect ab initio.  The submission was made that once Justice Bowskill’s orders were set aside, then the legal basis of those particular decisions would cease and therefore at least from then on, they would be invalid but it was not a case put below that they were invalid ab initio.

And it may well have suited the applicant not to run that case, because by the time of the Court of Appeal’s decision, things had occurred in consequence of President Kingham’s decision, which were favourable to my client, but also favourable to the applicant.  And, in particular, there had been a change in a condition imposed by the Coordinator‑General which, in effect, imposed a stricter noise condition on the project than was otherwise proposed by the second respondent. 

So, yes, it is our submission that these points were not raised below.  There was, indeed, as the Court of Appeal recorded, no separate issue identified in the appeals about the appropriateness of the orders made by Justice Bowskill.  There was no separate issue identified in the appeals about the effectiveness of those orders to provide a legal foundation for the decision of President Kingham.

BELL J:   Justice Bowskill’s orders reflected her Honour’s finding that, to the extent that the applicant contended that Member Smith’s reasons were affected by an apprehension of bias, her Honour rejected that.

MR CLOTHIER:   Yes.

BELL J:   Her Honour accepted there had been an earlier apprehension but that the applicant had waived its rights in relation to that.

MR CLOTHIER:   That is so, your Honour.

BELL J:   That is the analysis, is it not?

MR CLOTHIER:   Yes.

BELL J:   So the effect of the decision of the Court of Appeal was to find that the Member’s reasons were affected by an apprehension of bias.  If one again goes back to Justice Bowskill, I think her Honour made it clear that had she found an apprehension of bias in relation to Member Smith’s reasons, plainly she would not have made the ancillary orders confining the remitter.

MR CLOTHIER:   Yes, your Honour.

BELL J:   So the Court of Appeal then concludes, contrary to her Honour, there was an apprehension of bias in the reasons, and yet you say because of the events that had happened thereafter, the effect of that finding did not carry with it the necessity, absent some exceptional circumstance, to set aside the ‑ ‑ ‑

MR CLOTHIER:   We would say that on a full hearing, yes, your Honour.  Our primary submission to the Court of Appeal was that the Court of Appeal lacked power to set aside two decisions that were not under appeal or, alternatively, any such challenge should be left to separate proceedings.  The effect of the submissions that are sought to be made if special leave is granted is that both decisions are of no legal effect ab initio and that a court is in a position to determine that even now. 

So the effect of the submission is that the Supreme Court – if your Honours can go to the special leave application in volume 2, paragraph [30] at page 10, our submission, your Honour, on the vehicle issue is that if that is the contention to be run – and it is said to be – then it follows from the applicant’s position that the applicant must say that it can run that in a proceeding in the Supreme Court where the issue can be determined, rather than inviting this Court to determine any such issue for the first time as the final court of appeal for this country, and in circumstances where necessarily the issues in this case are not merely issues of general principle but also issues of statutory construction of at least four statutes – the Mineral Resources Act, the Environmental Protection Act, the Land Court Act the Judicial Review Act.  We invite this Court ‑ ‑ ‑

GAGELER J:   Mr Clothier, can I just ask this?  At page 781, volume 2, we see the foreshadowing of the orders that were, in fact, made.

MR CLOTHIER:   Yes, your Honour.

GAGELER J:   Paragraph 3 is a declaration.  Was that a declaration that your side proffered ‑ ‑ ‑

MR CLOTHIER:   Yes.

GAGELER J:   What is the consequence of the legal position declared by order 3, in your submission?

MR CLOTHIER:   The legal consequence, your Honour?

GAGELER J:   What is the utility of that declaration?  What does it say about the validity or invalidity of any action of the parties?

MR CLOTHIER:   One aspect of utility, your Honour, is that there is a second final decision yet to be made and that is the decision of the Minister in respect of the grant of the mining lease.  So, the utility of that declaration is particularly to inform the Minister that the decision of Member Smith was affected by apprehended bias. 

GAGELER J:   Does it not follow, as a matter of general principle, that the decision of Member Smith was a legal nullity?

MR CLOTHIER:   Member Smith’s decision, yes, your Honour, yes.  It does not follow, in our submission – and this is a proposition which, in our submission, ought to have been tested and on the applicant’s case can still be tested – it does not follow that the decision of President Kingham, which was made pursuant to a valid order of Justice Bowskill, is a legal nullity.  In our submission, on that point, Kable No 2 squarely answers the question.  The question is, relevantly, for the purposes of deciding whether there is jurisdictional error, whether there was a legal authority to make the decision.

There was no contest that her Honour’s orders, pursuant to the Judicial Review Act, were both appropriate and efficacious before the Court of Appeal.  So, in that sense, there was no contest before the Court of Appeal that her Honour’s orders formed a legal basis, the legal foundation, for President Kingham’s decision.  And independently of that, Kable No 2 tells us that, regardless of the statutory position, the order itself provides a legal foundation for action.

So that, in our submission, the proposition that the decision of President Kingham, based upon the orders of Justice Bowskill, is a legal nullity does not follow from the proposition that Member Smith’s decision was, because what intervenes is a valid legal authority pursuant to orders made under the Judicial Review Act.  And whilst the applicant’s position seems to be, still, that President Kingham’s decision is not merely liable to be set aside on legal grounds, but is itself a nullity, that is a contention which it appears to say can still be run by it in another proceeding.

The absence of any consideration of these issues is, in our submission, a powerful consideration against the grant of special leave.  The same applies, in our respectful submission, in respect of the challenge, in respect of the third respondent’s decision.  To the extent that the challenge to the third respondent’s decision is mounted on the basis of some factual proposition that it relied factually upon President Kingham’s decision, that factual issue was not explored before the Court of Appeal.

To the extent that it relies upon a legal position, that a valid decision of President Kingham is a precondition to the making of a final decision, that itself relies upon the proposition that President Kingham’s decision was invalid ab initio, notwithstanding it was made pursuant to valid orders of the Supreme Court.  It additionally has inherent in it the proposition that a necessary precondition to the making of final decisions is a legally valid recommendation as opposed to a recommendation in fact.  That is an issue, again, that was not explored, making this an inappropriate vehicle for the determination of the issue.

But if your Honours go briefly to the legislation which, in our submission, is given scant attention in the special leave application by the applicants, at 796 of volume 2 of the appeal record, your Honours will see some relevant provisions from the Environmental Protection Act in respect of the second respondent’s position.  What was required under section 190 was an objections decision to be made, that is, in the form of a recommendation.

Under section 194, the administering authority could proceed the final decision, after the objections decision, but the effect of the subsequent provisions, as your Honours will see, is that the objections decision is not binding in the sense that it resolves any legal or factual controversy.  Under subsection (4)(a)(i), it is merely a consideration, it is not a consideration by which the decision‑maker is bound, the decision‑maker could, for example, decide that the relevant legal error was irrelevant to the decision the decision‑maker might make, or correct it.

So, in our submission, any proposition that a lawful recommendation in the sense of one not vitiated by jurisdictional error is a precondition, is itself not a proposition that was put or decided by the Court of Appeal, itself involves issues of…..construction which this Court would have to consider for the first time, and is not self‑evidently strong, in our respectful submission.

The same applies to the decision‑making authority of the Minister.  If your Honours go to volume 2 of the application book, page 814, under 271, the recommendation has really the same status.  It is not a binding thing in the sense that the Minister is not free to depart from it.  And, indeed, the position, in our respectful submission, is even stronger against the notion that it requires a legally effective recommendation because under 217A(1)(c), for example, and 272, the Minister himself or herself has the power to remit to the Land Court.

So that if your Honours were to grant special leave against the background of questions not having been raised and fully explored in the Court Of Appeal, against the background of the applicant seemingly contended that they remain to be determined and can be determined because the effect is the decisions are a nullity, this is not an appropriate case for special leave.  And nor, in our submission, is it a strong case on the merits in circumstances where the core contention of nullity necessarily involves that there was no lawful authority for President Kingham’s decision, even though, in our respectful submission, Kable No 2, which is not the subject of an application for leave to reopen, is squarely against that proposition. 

And nor is it answered, in our respectful submission, by some general appeal to principles from concrete constructions, which again might

need to be explored in a different forum because, in fact, what both Justice Bowskill did and Justice Kingham did was administer justice fairly and impartially.  It has later been determined that Justice Bowskill was wrong, but neither of their decisions resulted from an unfair or impartial determination. 

Can we say finally, your Honour, if your Honours are minded to grant special leave, in our submission, your Honours would not appeal ‑ permit appeal with respect to costs.  Your Honours have seen from the material that the costs made in the Court of Appeal were in fact those proposed by the applicant. 

BELL J:   Yes. 

MR CLOTHIER:   Those are our submissions, thank you, your Honours. 

BELL J:   Mr Kirk, I think we only need to hear you on the last issue raised by Mr Clothier, which is your proposed ground 3.

MR KIRK:   Your Honours, can I just say a couple of things briefly about that.  First, we conceded in our special leave application that that does not raise a special leave point itself ‑ ‑ ‑ 

BELL J:   Yes. 

MR KIRK:   ‑ ‑ ‑ so we have not sought to say anything of significance about it in our written submissions.  But that being said, it is integrally related in the ordinary incidental way to the conduct of the litigation below.  Your Honours may recall that the original order on costs made by Justice Bowskill was that there be no order as to costs, and that was then overturned by the Court of Appeal in the subsequent orders.  Because we are seeking to overturn those orders, the effect would be to seek to restore it.  I am not sure exactly what was put below ‑ ‑ ‑

GAGELER J:   Mr Kirk, if you lose on grounds 1 and 2, do you seek independently to pursue ground 3, that is the question?

MR KIRK:   No.  Sorry, no, we do not.

GAGELER J:   We do not need ground 3 ‑ ‑ ‑

BELL J:   We do not need it.

GAGELER J:   I mean, costs are not normally something that are independently addressed and ‑ ‑ ‑

MR KIRK:   That is probably right ‑ sorry, your Honour.

GAGELER J:   The last thing we would want to do is to turn this appeal into an appeal about costs.

BELL J:   I think, Mr Kirk, you accept that you do not need ground 3.

MR KIRK:   I think that is right.  Can I just raise one other practical point, your Honour, because there is a little bit of background here which I perhaps need to mention anyway.  New Acland has applied to wind up my client based on the costs orders made below and I understand there is proceedings in the Queensland Supreme Court, I think it is, which are currently, in effect, awaiting this determination.

Now, no doubt New Acland will be sensible and not seek to pursue that application in light of the grant of special leave because that would bring to an end potentially my client’s existence.  Consistently with Tait’s Case, a rather more dramatic example, but that would be a very large question. 

So, I do not want to make a stay application now but I did just want to clearly put or raise the issue that in relation to this costs issue it would be inappropriate, in our respectful submission, for New Acland to seek to use any orders made below to wrap up the existence of my client and thus bring this matter to an end.  That being said, I do not understand what your Honours have raised with me to mean that issues of costs cannot be argued incidentally in terms of the orders ‑ ‑ ‑

BELL J:   Well, issues of costs will depend upon the outcome of the appeal in the ordinary way.

MR KIRK:   Yes, indeed.  If it please the Court.

BELL J:   There will be a grant of special leave in this matter.  That grant is confined to grounds 1 and 2 in the application.  What is the estimated length of the proceeding?

MR KIRK:   It should not be more than a day, I think, your Honours. 

MR CLOTHIER:   We agree, your Honour. 

BELL J:   Yes.  Yes, very well.  As indicated, there will be a grant of special leave confined to grounds 1 and 2 in this matter.  The Court will adjourn until 10.30.

AT 9.53AM THE MATTER WAS CONCLUDED