Pollicina and Others v Hume Coal Pty Ltd; Roche & Anor v Hume Coal Pty Ltd; Martin & Anor v Hume Coal Pty Ltd

[2015] NSWLEC 1571

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Pollicina and Others v Hume Coal Pty Ltd; Roche & Anor v Hume Coal Pty Ltd; Martin & Anor v Hume Coal Pty Ltd [2015] NSWLEC 1571
Hearing dates:	16 November 2015
Date of orders:	16 November 2015
Decision date:	16 November 2015
Jurisdiction:	Class 8
Before:	Dixon C
Decision:	See paragraph [10]
Catchwords:	APPEAL – Mining – Review of access arrangements – adjournment application
Legislation Cited:	Civil Procedure Act 2005 (NSW) Mining Act 1992 (NSW) Uniform Civil Procedure Rules 2005 No 28 (NSW)
Category:	Principal judgment
Parties:	Phillip Pollicina (First Applicant of 2015/80476) Fesen Pty Ltd (Second Applicant of 2015/80476) Kathleen Roche (First Applicant of 2015/80815) John Roche (Second Applicant of 2015/80815) Kimberley Martin (First Applicant of 2015/80825) Peter Michael Martin (Second Applicant of 2015/80825) Hume Coal Pty Ltd (Respondent of 2015/80476, 2015/80815 and 2015/80825)
Representation:	Counsel: Robert White with Marylou Potts (Solicitor) (Applicants of 2015/80476, 2015/80815 and 2015/80825) Richard Beasley SC with Amy Knox (Respondent of 2015/80476)   Solicitors: Marylou Potts Pty Ltd (Applicants of 2015/80476, 2015/80815 and 2015/80825) Sparke Helmore Lawyers (Respondent of 2015/80476)
File Number(s):	80476 of 201580815 of 201580825 of 2015

EXTEMPORE Judgment

1. COMMISSIONER: Phillip Pollicina, Fesen Pty Ltd, Kathleen and John Roche and Kimberley and Peter Martin (the Applicants) have commenced proceedings (15/80405) on 12 May 2015 for the determination of disputes said to arise from s 31 of the Mining Act. At 10am on Friday 13 November 2015 I delivered my judgment in those proceedings.

2. The present proceedings were fixed to commence hearing today for seven days. The applicants seek a review of the arbitrators’ access arrangements for their land. As the outcome of the earlier proceedings has some bearing upon the present proceedings, the latter were fixed in anticipation that the judgment in the earlier proceedings would be delivered at least two weeks before the hearing of the present proceedings.

3. Regrettably, this did not occur. Other cases that I was allocated to hear extended beyond their fixed hearing time such that I was not able to deliver the judgment in the earlier proceedings until Friday morning. At my request the Registrar informed the parties of that fact last Monday, 9 November.

4. At the commencement of the hearing today, the applicants sought to have the present proceedings adjourned. They claimed that they were prejudiced in proceeding today as they had not had sufficient opportunity to address the consequences of my judgment in prosecuting the present proceedings. No evidence in support of the application was provided other than reference to the mention on 21 October 2015 where such an application was foreshadowed if time to prepare was inadequate.

5. Hume opposes the adjournment on several grounds. It refers to the Uniform Civil Procedure Rules 2005 which require the applicants to file appropriate supportive evidence on an application for an adjournment.

6. In this case, the oral submissions of the applicants’ counsel, Mr White, are the only basis upon which I am being asked to vacate a seven day hearing. The applicants have been unable to articulate with any particularity the evidence that they would propose to adduce, apart from the lay evidence already filed, supplemented with further short lay evidence. The nature of that additional lay evidence has not been clearly identified, although Mr White has indicated an intent to also seek expert valuation evidence. Mr White candidly admitted that no valuer had yet been approached. He was unable to clearly articulate the content of the instruction to a valuer, other than by reference to the matters in s 262 of the Mining Act. Mr White further indicated that the applicants proposed a different access agreement to that which had been considered by the arbitrators from whose decisions the present appeals are brought. However, no proper or particularised notice of the amendments to the proposed access agreements presently considered has been given to Hume. Hume sought clarification of all of the applicants evidence in a letter dated 21 October 2015 (exhibit A) served after the Court mention that day, seeking the names of the witnesses, including the valuer, and matters to be addressed. The applicants’ solicitor did not respond to that request.

7. The final decisions of the arbitrators were given at different times before June 2015. Hume’s activity approval to carry out exploration expires, I am told and it is in evidence, on 12 September 2016. Time they submit is therefore of the essence. It is submitted that if the present proceedings were adjourned to some date in early 2016, it may well prejudice Hume’s ability to exercise its exploration rights. As a consequence, it wishes to retain at least some part of the allocated hearing time.

8. While I am concerned to act fairly in the interests of the applicants, I must also consider the position of Hume. However, in doing that I need to exercise my discretion under the Uniform Civil Procedure Rules, in conformity with the relevant provisions of s 58, having regard to ss 56 and 57 of the Civil Procedure Act 2005. The objects of case management include timely, efficient disposal of proceedings and use of Court resources. In the circumstances, I am not prepared to grant the adjournment that the applicants seek. Although, I am prepared to delay the commencement of the hearing until Monday next, 23 Nov and direct that the applicants serve and file any further evidence and any proposed access agreements upon which they propose to rely by 4pm on Thursday 19 November, including a schedule indicating which of the matters they do not dispute in the arbitrators’ final access agreements.

9. The applicants have indicated that they propose to appeal my s 31 decision. However, no stay in those earlier proceedings is being sought and the applicants have indicated that they do not propose to seek a stay at the present time.

10. Accordingly, in respect of the present proceedings, I make the following orders:

1. I adjourn the hearing until Monday 23 November at 10am;

2. I direct that by 4pm on Thursday 19 November, the applicants file and serve:

1. further evidence upon which they propose to rely,

2. any further amended access agreement proposed to be relied upon by them,

3. a schedule of the matters that the applicants do not dispute set out in the access agreements determined by the arbitrators, and

4. liberty to restore on 24 hours’ notice.

Susan Dixon

Commissioner

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Amendments

02 February 2016 - Amended matter number at paragraph 1.

Decision last updated: 02 February 2016