QCoal Sonoma Pty Ltd (Principal Holder) v Reed
[2012] QLC 34
•18 July 2012
LAND COURT OF QUEENSLAND
CITATION:QCoal Sonoma Pty Ltd (Principal Holder) & Ors v Garry Reed & Ors [2012] QLC 0034
PARTIES:QCoal Sonoma Pty Ltd, Cliffs Australia Coal Pty Ltd, CSC Sonoma Pty Ltd, JS Sonoma Pty Ltd and Watami (Qld) Pty Ltd
(applicants)
v.
Garry Reed, Greg James, Brett Murphy, Michael Lucas, Cynthia Jean Winston, Carol Cosentino, Carole Denise Wyper, Bill Wyper, Patricia Julien and Whitsunday Regional Council
(respondents)
and
Chief Executive, Department of Environment and Heritage Protection
(statutory party)
FILE NO:EPA1002-11
DIVISION:General Division
PROCEEDING: Revised orders sought on behalf of the respondent Garry Reed
DELIVERED ON: 18 July 2012 [Ex tempore]
DELIVERED AT: Brisbane
HEARD ON: 18 July 2012
HEARD AT:Brisbane
MEMBER:Mr WA Isdale
ORDERS:1. The orders in force are not varied.
2.Costs are reserved.
CATCHWORDS: Practice and procedure ― orders prior to trial
Environmental Protection Act 1994, s.219
APPEARANCES: Mr M F Johnston instructed by McCullough Robertson solicitors for the applicants
Ms P J Hay with Mr D Stevenson instructed by Environmental Defenders Office of North Queensland Inc for the respondent, Garry Reed
Ms L J Hoult, lawyer for the statutory party
Background
On 26 March 2010 QCoal Sonoma Pty Ltd (the company) applied to amend the environmental authority for the Sonoma Coal Mine. After some objections were received, the statutory party referred the application to this Court pursuant to s.219 of the Environmental Protection Act 1994. At present there is only one level 3 objector, Mr Reed. The other remaining objectors are level 1 objectors who rely on their notice of objection only and would not attend the hearing.[1]
[1] Land Court Practice Direction 1 of 2012. Level 3 objectors attend the hearing, call evidence, cross-examine witnesses and make submissions at the end of the hearing.
Revised orders sought on behalf of Mr Reed
The legal representatives of Mr Reed have utilised the liberty to apply provision granted in the Court’s orders of 5 June 2012 to have this matter brought back before the Court for further directions. On 5 June 2012 the Court made a series of 12 orders which provided a timetable for bringing Mr Reed’s objections and those of the level 1 objectors to readiness for trial. Given the limited participation of the level 1 objectors, the orders are principally relevant to the hearing of Mr Reed’s objections. The first two orders made on 5 June 2012 were directed to readying for hearing the General Application by Mr Reed that there be a separate hearing of a legal point. The remaining orders were directed to progressing the body of the matter towards hearing while the General Application was dealt with. The General Application seeking a separate hearing of a preliminary point has been heard.
At the time when the matter of the orders made on 5 June 2012 was brought back before the Court, on 18 July 2012, the parties were in compliance with those orders and observing the timetable which leads to the parties filing a Request for Trial Date by 23 July 2012.
On behalf of Mr Reed, it is sought to substitute a new set of orders introducing a requirement that there be a meeting of the opposing experts in each field and for them to provide joint statements. After this, it is proposed that written outlines of argument will be filed and served. The structure of the dates proposed leads to a Request for Trial Date being filed by 24 September 2012. This is a two month delay compared to the present timetable.
The positions of the parties with respect to this
The statutory party does not support the proposed orders and the applicants strongly oppose them. The applicants have complied with order 5 made on 5 June 2012 and provided their written outline of argument within the time provided. The statutory party has also provided its outline, albeit a few days later than the due date of 6 July 2012. The orders sought would make it necessary for these steps to be done again.
It was submitted on behalf of Mr Reed that the proposed orders were necessary to avoid him being taken by surprise at the hearing and to minimise the length of the hearing itself.
The applicants’ submission was that there is no utility in the proposed orders in view of the orders made on 5 June 2012 which provide for the exchange of material and outlines of argument. The applicant also relies on the prejudice to it of any delay, details of which were provided in its submissions in relation to the application for a separate hearing. There is sworn evidence,[2] which was unchallenged, of material prejudice to the applicants. Mr Stokes, a solicitor, affirms that he has been informed by Mr David Nebauer, site superintendent of the Sonoma Coal Mine, and believes the following:
[2] Affidavit of Peter William Stokes affirmed on 1 June 2012 and filed on 4 June 2012.
“Prejudice to the Applicants
64 I am informed by Mr Nebauer and believe that any further delay to the Land Court proceeding will have a prejudicial impact on the operations of the Sonoma Coal Mine. Specifically, Mr Nebauer has informed me that:
(a)the Sonoma Mine open cut pit shell has, since lodgement of the Amendment Application, been extended to the south as far as the constraint imposed by Two Mile Creek will permit;
(b)the Sonoma Mine open cut pit shell was, prior to lodgement of the Amendment Application, extended to the north as far as the constraint imposed by Coral Creek would permit;
(c)if the Applicants obtain all necessary approvals for the purpose of the diversion of Coral Creek, as is contemplated by the Amendment Application, the Applicants will extend the life of the mine for approximately seven to 12 months. I seek leave to refer to paragraph 25 of the Affidavit of Mr Nebauer filed 19 April 2012 in this regard;
(d)further delays in commencing Coral Creek diversion works will have an operational impact of (sic) the Sonoma Mine. Specifically, if operations are to continue, they will need to continue at deeper levels than otherwise necessary, at higher cost ratios by reference to the material extracted;
(e)the construction of the Coral Creek diversion must be completed prior to the onset of the 2012/13 wet season. To do so, the construction of the diversion must (sic) commenced by 1 September 2012. If this does not occur, it will be necessary to wait a further three to six months to access the coal once the diversion is completed;
(f)the additional cost of delaying access to the coal in the Coral Creek diversion area, in terms of lost Net Present Value (NPV) based on a free cashflow model of cash outgoings and cash incomings, is about $20,987 per day of lost NPV:
(g)therefore, the extension of these proceedings by 28 days would have a total cash impact, in terms of lost NPV for the project, of about $587,636. Further, if the delay causes the Applicants to miss the ‘construction window’ before the onset of the wet season, the costs would be in the range of $1,888,830 (for 90 days) to $3,777,660 (for 180 days);
(h)there will be further costs caused by delay, for example impacting on supplier reliability and reputation, and the potential need to reduce labour levels and incur plant standby costs, which are too difficult to quantify at present.”
Balancing the considerations
I am satisfied that the interests of justice are not served by making the orders now sought. The preparation has significantly advanced in accordance with the orders made on 5 June 2012 and any prejudice which might arise to Mr Reed could be accommodated by the mechanism of costs or an adjournment, or both, if he is surprised by any new material. The potential prejudice to the applicants in the event of a two month delay which would follow from making the orders sought is so large as to outweigh the potential prejudice to Mr Reed if the matter proceeds in accordance with the existing orders. The mechanisms which I have referred to will be available to address any prejudice to Mr Reed. I am not satisfied that a potentially longer hearing outweighs the prejudice to the applicants of a two month delay in reaching a hearing.
Decision
For the reasons I have given, I do not propose to vary the orders presently in force in this matter.
Costs
Costs of the hearing on 18 July 2012 are reserved.
Orders
1. The orders in force are not varied.
2. Costs are reserved.
These reasons are delivered ex tempore and I reserve the right to tidy them up for publication.
WA ISDALE
MEMBER OF THE LAND COURT
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