Rallen Australia Pty Ltd v Sweetpea Petroleum Pty Ltd - [2022] NTSC 60

CITATION:Rallen Australia Pty Ltd v Sweetpea Petroleum Pty Ltd [2022] NTSC 60
PARTIES:RALLEN AUSTRALIA PTY LTD
ACN 628 080 820
v
SWEETPEA PETROLEUM PTY LTD ACN 074 750 879

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2022-00344-SC
DELIVERED:  2 August 2022
HEARING DATES:  20 and 21 June 2022
JUDGMENT OF:  Barr J
CATCHWORDS:

INTERLOCUTORY APPLICATION – STAY APPLICATION –Application for leave to appeal against whole of decision of Northern Territory Civil and Administrative Tribunal decision of approved access agreement under Petroleum Act1984 (NT) – Applicant sought to stay certain approved activities pending outcome of leave to appeal – Applicant asserted activities of Respondent would render appeal nugatory – Stay sought had limited scope – No proper basis for a stay established – Application dismissed
Northern Territory Civil and Administrative Tribunal Act 2014 (NT); ss 142(2)
Petroleum Act 1984 (NT); ss 11
Petroleum Regulations 2020 (NT); reg 12
REPRESENTATION:
Counsel:
Applicant:A McGrath SC, R White
Respondent:  B Katekar SC, H Baddeley
Solicitors:
Applicant:Gadens
Respondent:  Squire Patton Boggs
Judgment category classification:    B
Judgment ID Number:  Bar2209
Number of pages:  12

IN THE SUPREME COURT

OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Rallen Australia Pty Ltd v Sweetpea Petroleum Pty Ltd [2022] NTSC 60

No. 2022-00344-SC

BETWEEN:

RALLEN AUSTRALIA PTY LTD

Applicant

AND:

SWEETPEA PETROLEUM PTY LTD
Respondent

CORAM: BARR J

REASONS FOR DECISION ON STAY APPLICATION

(Delivered 2 August 2022)

Rallen Australia Pty Ltd (“Rallen”) is the lessee under the Pastoral Land Act 1992 (NT) of NT Portion, known as Tanumbirini Station. The respondent is the holder of Exploration Permit 136 (“EP 136”) issued under the Petroleum Act1984 (NT). The land the subject of EP 136 extends over part of Tanumbirini Station.
On 20 and 21 June 2022, I heard an application by Rallen for leave to appeal against the whole of the decision of the Northern Territory Civil and Administrative Tribunal (“the Tribunal”) made on 7 February 2022, and the consequential orders made on 4 May 2022 determining an approved access agreement in line with the decision.[1]
The proposed grounds of appeal argued on the application for leave were contained in the further amended draft notice of appeal, nine grounds in all.[2] The relief sought, in the event that leave to appeal were granted and the appeal upheld, were orders setting aside (1) the decision of the Tribunal contained in the reasons dated 7 February 2022 and (2) the orders for an access agreement dated 4 May 2022. It was further sought that the matter be remitted to the Tribunal for determination in accordance with the Court’s reasons. On such remitter, Rallen would seek the re-determination by the Tribunal of the terms of the approved access agreement whereby access would be “by reference to a set term, and after a proper process of considering and balancing the interests of Rallen and Sweetpea”.[3]
I reserved my decision on the application for leave to appeal. I anticipate that I will be able to decide the matter within two to three months.
Rallen filed a summons on 20 June 2022, in which it sought a stay of the “further operation of the decision of the Tribunal contained in the orders made by the Tribunal on 4 May 2022, and the access agreement attached to those orders, until the determination of the applicant’s application for leave to appeal, and if granted, the applicant’s appeal”.
The Northern Territory Civil and Administrative Tribunal Act 2014 (NT), s 142(2), which applies after an application for leave to appeal is filed, permits the Supreme Court to stay the operation of a decision of the Tribunal until the determination of an application for leave to appeal from the decision.
I listed the stay application for hearing on 15 July 2022.
On 24 June, Rallen filed a further summons, seeking an interlocutory injunction to prevent Sweetpea, its contractors or employees from:
a.    engaging in the construction of a track, referred to as the ‘Western Access Track’, from a point 300m north of the central line of the Newcastle Creek, south to the Tanumbirini/Beetaloo boundary;
b.    without the prior consent of Rallen, utilising the track known as the ‘Eastern Access Track’ for the movement of heavy vehicles; and
c.    without the prior consent of Rallen, cutting the central fence line that runs north to south between the paddocks known as ‘Southern Cross’ and ‘Telecom’.
The further summons sought orders “until 15 July 2022 or further order”. An interim order was made in favour of Rallen on 28 June, preventing any further construction activity on the Western Access Track. However, on 30 June 2022, under the terms of a consent order, the interim injunction was lifted with immediate effect.
Notwithstanding the lifting of the interim injunction, Rallen remained concerned about the activities of Sweetpea on or in relation to the Western Access Track. That access track leads south from the Carpenteria Highway, to seismic line 9, and then in an easterly direction towards the well pad at LP1. The track is 18 m wide all the way from the Carpentaria highway to LP1 Well. Rallen’s main concern was the possible widening of the Western Access Track to the south of LP1 Well,[4] and the effect it would have on its cattle operations, which are said to be adversely affected by works carried out to date on the Western Access Track.
Rallen contends that the Western Access Track will create a barrier dividing the Southern Cross paddock into two parts, stranding cattle on the western side of the paddock from the eastern side of the paddock. There are some areas where uprooted trees have been bulldozed to the side of the track, blocking existing cattle paths. Cattle on the western side will be unable or reluctant to cross the track in order to access the water infrastructure on the eastern side of the Southern Cross paddock.[5] Evidence relied on by Rallen suggests that the activities of Sweetpea have caused cattle to migrate to the south and west of the Southern Cross paddock.[6] Because Rallen has not yet had the opportunity to establish additional water infrastructure to the south and west of that paddock, there is a risk that cattle may perish.[7]
Although Rallen contends that there is a real risk that Sweetpea’s activities will cause irremediable damage to Rallen’s business activities on Tanumbirini “which may not be compensable by money pursuant to the legislative scheme or the Approved Access Agreement”, it acknowledges that the proposed stay could not of itself remedy the damage which has already been done. A stay is sought to prevent further damage in circumstances where it is unclear what the intentions of Sweetpea may be.
Sweetpea’s work program for the period July 2022 to May 2023 has been stated (or clarified) in the following terms:[8]
Work Program Commitments
Sweetpea is committed to its work program commitments under EP136 …. Sweetpea presently intends that that work will include, amongst other things, the following, in the period from July 2022 to May 2023:
(a)     within the Seismic Environment Management Plan (Seismic EMP):
(i)complete clearing the seismic lines forming part of the 85km seismic survey, which as at the time of swearing this affidavit is 62% complete; and
(ii)once the seismic lines are clear, the seismic acquisition will be undertaken and all seismic lines will be rehabilitated.
(b)     within the Civils Construction and Water Bore EMP (Civils EMP):
(i)mobilise the necessary equipment and clear approximately 6m (approximately 1m wider than the seismic lines) wide tracks for the distinct purpose of providing access for the civils equipment required to construct a 50m X 50m pad for the water bore rig, and for the water bore rig itself, from:
(A)the access point beginning south of Lease Pad 1 (LP1) (operations scheduled to start approximately 15 August 2022);
(B)LP1 to Lease Pad 4 (LP4) (being seismic line 10 and immediately following the clearing described in (A) above); and
(C)half way between LP1 and LP4 across to Lease Pad 3 (LP3) (being seismic line 8 and immediately following the clearing described in (B) above); All clearing work (A) - (C) should take circa 14 days;
(ii)install a water bore at LP1 (completed 09 July 2022), LP3 (starting circa 01 September 2022), and LP4 (starting immediately after conclusion of the water bore at LP3);
(iii)mobilise civil equipment to construct LP3 for a drilling rig (starting mid-September 2022 or May 2023) and LP4 (starting May 2023 or immediately following LP3 if pad is started in May 2023); and
(iv)drilling of a well at LP1 (commencing mobilization approximately early August 2022), LP3 (mobilization approx. early/mid-April 2023) and LP4 (mobilization immediately following completion of the well on LP3).
…
The clearing required to access LP3 and LP4, in paragraph (b)(i) will involve:
(a)     clearing of all vegetation to reveal the dirt; and
(b)     firm up the dirt with light gravel to ensure the ground is safe for a heavy truck or rig to traverse, without turning it into a permanent access track, and
(c)     no widening of the access track from approx. 6 m to a full 18m required until April 2023 when the drilling rig is scheduled to be moved into LP3. In the avoidance of doubt, the intent at this time is to widen the WAT from the current approx. 6m to a full 18m starting in April of 2023 in advance of the arrival of the drilling rig to the field
Rallen is concerned that the works program statement is qualified by reference to Sweetpea’s present intention (“presently intends”), and the phrase “amongst other things”. Rallen contends that the inclusion of such qualifiers leaves open the possibility, and hence does not eliminate the risk, that Sweetpea may continue to undertake work irreparably damaging to Tanumbirini and Rallen’s pastoral activities on Tanumbirini.
Notwithstanding the words, “… that work will include, amongst other things”, it was made clear at the stay hearing that Sweetpea does not presently intend to start widening the Western Access Track south of the well pad at LP1, whether straight south to the LP4 Well or south and then east to the LP3 Well. Such work will not commence until April 2023. As a result, the works now proposed to be carried out to the Western Access Track, the prospect of which has caused the greatest concern to Rallen, will not take place until after I have decided Rallen’s appeal from the Tribunal’s decision.
In response to the clear statement or clarification of its work program by Sweetpea, Rallen modified its position from seeking the ‘blanket stay’ described in [5] to one in which it sought a ‘permissive stay’, that is, a stay with specific exceptions which would permit Sweetpea to carry out certain works to accommodate what Rallen understood to be the immediate priorities of Sweetpea.[9] The proposed exceptions are consistent with Rallen’s wish to restrict Sweetpea to areas which have already been cleared or prepared for seismic works, that is, already damaged, but so as to prevent any further damage in the event that Sweetpea expands or accelerates its current program.
The level of flexibility in the proposed stay increased (that is, became more favourable to Sweetpea) in the course of and after the stay hearing, such that Rallen now asks for a stay in the following terms:
1.[That] with the exception of the operation of the access agreement attached to the orders made by the Northern Territory Civil and Administrative Tribunal (Tribunal) on 4 May 2022 (Access Agreement) in so far as it applies to those activities listed under the heading 'Excluded Activities' below, stay the further operation of the decision of the Tribunal contained in the orders made by the Tribunal on 4 May 2022 and the Access Agreement attached to those orders until determination of the Applicant's application for leave to appeal and if granted the Applicant's appeal or further order.
2.Leave to either party to apply to vary order 1 and the schedule of Excluded Activities below, on 7 days' notice.
Excluded Activities
The following activities (and any activities which are incidental to them) in the period from July 2022 to May 2023:
a)      within the Seismic Environment Management Plan (Seismic EMP):
(i)complete clearing the seismic lines forming part of the 85km seismic survey; and
(ii)once the seismic lines are clear, the seismic acquisition will be undertaken and all seismic lines will be rehabilitated.
b)      within the Civils Construction and Water Bore EMP (Civils EMP):
(i)mobilise the necessary equipment and clear approximately 6m (approximately 1m wider than the seismic lines) wide tracks for the distinct purpose of providing access for the civils equipment required to construct a 50m X 50m pad for the water bore rig, and for the water bore rig itself, from:
(A)the access point beginning south of Lease Pad 1 (LP1) (operations scheduled to start approximately 15 August 2022);
(B)LP1 to Lease Pad 4 (LP4) (being seismic line 10 and immediately following the clearing described in (A) above); and
(C) half way between LP1 and LP4 across to Lease Pad 3 (LP3) (being seismic line 8 and immediately following the clearing described in (B) above); All clearing work (A) – (C) should take circa 14 days;
(ii)install a water bore at LP1 (completed 09 July 2022), LP3 (starting circa 01 September 2022), and LP4 (starting immediately after conclusion of the water bore at LP3);
(iii)mobilise civil equipment to construct LP3 for a drilling rig (starting mid-September 2022 or May 2023) and LP4 (starting May 2023 or immediately following LP3 if pad is started in May 2023); and
c)      the drilling of a well at LP1.
For the avoidance of any doubt, the clearing to access LP3 and LP4 in paragraph (b)(i) above will involve:
a)clearing of all vegetation to reveal the dirt; and
b)firm up the dirt with light gravel to ensure the ground is safe for a heavy truck, or rig to traverse, without turning it into a permanent access track; and
c)no widening of the access track from approximately 6m to a full 18m (which it is noted is not required until April 2023 when the drilling rig is scheduled to be moved into LP3).
Rallen contends that the terms of the stay are fair and just to both parties because of the balance they strike between the competing interests of permitting Sweetpea to carry out all of what Rallen understands to be the immediate priorities of Sweetpea and, at the same time, protecting Rallen’s land and pastoral activities on Tanumbirini from the most significant harmful interference.
The proposal by Rallen does not seem unreasonable. However, Sweetpea opposes any stay, even on the flexible terms proposed by Rallen, and I therefore need to consider Rallen’s entitlement to the stay sought. The authorities require that Rallen bear the onus of demonstrating that the stay should be granted. I must consider all the circumstances, including the competing rights of the parties and the balance of convenience.
The underlying purpose of the stay application is to ensure that the benefit to Rallen, if its application for leave to appeal were granted and its appeal ultimately successful, is preserved pending the Court’s consideration. However, I bear in mind that the benefit is not of the same kind as an order reversing a civil judgment in a liquidated amount or for damages to be assessed. If Rallen establishes vitiating errors of law and succeeds in the appeal, the ‘fruits’ of the appeal will be no more than the opportunity to re-argue its case before the Tribunal with a view to obtaining an approved access agreement on more favourable terms.[10]
In my judgment, Rallen has not established a proper basis for a stay. For present purposes, at least, it does not oppose the activities to be carried out by Sweetpea under its proposed works program. Indeed, the terms of its proposed stay substantially accommodate the carrying out by Sweetpea of its works program over the next three months or more. For those reasons, the stay is unnecessary. Moreover, the activities described as “excluded activities” (that is, permitted activities excluded from the operation of the stay) are likely to be subject to contested interpretations, leading to further litigation about issues of compliance or non-compliance with the terms of the proposed stay.
Sweetpea should be held to its stated intentions in relation to the nature and timing of works in the next three months. My decision to refuse the stay application is substantially informed by the works program extracted in [13]. If there is any material departure from the program, adverse to the interests of Rallen, it would be open for it to make application for an injunction.
The application for a stay is dismissed.
The question of costs is reserved.
The parties should file orders in the Registry consistent with these reasons.
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[1] Reg 12, Petroleum Regulations 2020 (NT), provides that an interest holder must not commence regulated operations on land except in accordance with an approved access agreement.

[2] Grounds 1, 2, 3, 4, 5, 5a, 6, 7 and 8. Ground 1 contains four sub-grounds.

[3] Applicant's submissions on stay application, par 74. The reference to a ‘set term’ is one which is fixed by reference to the timing of specific activities and not merely co-extensive with the term of EP 136.

[4] Rallen was also concerned about widening of seismic lines.

[5] That water infrastructure is on the eastern boundary of the Southern Cross paddock, the boundary between the Southern Cross and Telecom paddocks, known as the ‘central fence line’.

[6] Affidavit Andrew Stubbs promised 13 July 2022, pars 19d, 20; affidavit Michael Colin Tasker promised 13 July 2022, pars 59, 62-65.

[7] In par 17 of his affidavit promised 13 July 2022, Michael Colin Tasker, Station Manager, states: “On average, each animal requires approximately 50 litres of water per day. An animal can die if it is without water for more than two days.”

[8]Affidavit of Faron Thibodeaux promised 11 July 2022, pars 7, 10. I note Rallen’s complaint that the detail of Sweetpea’s intended work program was provided on 11 July, just days before the stay hearing, in circumstances where Rallen had been pressing for many weeks to be informed of the activities proposed to be carried out and their specific timing and location(s).

[9]Those works were referred to in par 118 of the applicant’s submissions.

[10] Albeit with the possible benefit of additional evidence (which may well be contested) as to the alleged adverse impact on its pastoral operations of exploration activities carried out by Sweetpea after 4 May 2022.