Whitehaven WS Pty Ltd v Australian Conservation Foundation Inc (No 3)

[2025] QLC 26

LAND COURT OF QUEENSLAND

CITATION:

Whitehaven WS Pty Ltd v Australian Conservation Foundation Inc & Ors (No 3) [2025] QLC 26

PARTIES:

Whitehaven WS Pty Ltd
(applicant)

v

Australian Conservation Foundation Inc

Mackay Conservation Group Inc

(active objectors)

and

Chief Executive, Department of Environment, Tourism Science and Innovation

(statutory party)

FILE NO:

MRA080-24

PROCEEDING:

Hearing of a General Application

DELIVERED ON:

17 October 2025

DELIVERED AT:

Brisbane

HEARD ON:

13 October 2025

HEARD AT:

Brisbane

MEMBER:

N.D. Loos

ORDERS:

1.   The Commonwealth of Australia, Net Zero Plan, is admitted into evidence and marked as Exhibit ACF.0772.

2.   By 4:00pm on Friday, 24 October 2025, the active objectors may file a separate written outline of submissions of no more than five pages, containing any submissions that they wish to advance about the Australian Climate Service, National Climate Risk Assessment 2025 and the Climate Change Authority, 2035 Targets Advice.

3.   By 4:00pm on Monday, 24 November 2025, Whitehaven and the statutory party may file a separate written outline of submissions of no more than five pages in response to any document filed by the active objectors pursuant to order 2 above.

4.   The General Application filed on 23 September 2025 is adjourned for further hearing at 10:00am on Wednesday, 3 December 2025.

CATCHWORDS:

EVIDENCE — COURSE OF EVIDENCE AND ADDRESSES — COURSE OF EVIDENCE — RE-OPENING CASE AND RECALLING WITNESSES — BY PARTIES — application for leave to adduce further evidence — relevant test

EB v CT (No. 2) [2008] QSC 306, cited
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (No 1) [2019] 2 QR 271, cited
Reid v Brett [2005] VSC 18, cited
Shi v Migration Agents Registration Authority (2008) 235 CLR 286, cited
Smith v New South Wales Bar Association (1992) 176 CLR 256, cited

APPEARANCES:

J O’Connor and J Underwood (instructed by MinterEllison) for the applicant

E Nekvapil SC, K McAuliffe-Lake and G Kiss (instructed by Environmental Defenders Office) for the active objectors

J Horton KC and A Hellewell (instructed by the Department of the Environment, Tourism, Science and Innovation) for the statutory party

The disagreement

1. The active objectors seek leave to tender three new documents.

2. The “evidence phase” of the hearing concluded on 5 September.

3. The matter is listed for four days of oral submissions in December.

4. Whitehaven opposes two of the three new documents going in.

5. The statutory party has the same position as Whitehaven.

The state of the hearing

1. Evidence was heard between 21 July and 5 September 2025. 

2. At the end of the evidence, the parties asked for the opportunity to make both written and oral closing submissions. 

3. On 5 September 2025, orders were made setting a regime for exchange of written submissions: 

   (a)Whitehaven went first and filed written submissions on 19 September 2025;

   (b)the active objectors are due to file their written submissions on 24 October 2025;

   (c)the statutory party must file its written submissions on 14 November 2025;

   (d)then the parties have the chance to file reply submissions.

4. The matter is listed for oral submissions on 3, 4, 5 and 9 December 2025. 

The new documents

1. The three documents sought to be introduced are:

   (a)Australian Climate Service, National Climate Risk Assessment 2025;

   (b)Climate Change Authority, 2035 Targets Advice;

   (c)Commonwealth of Australia, Net Zero Plan.

2. The documents were publicly released on 15 and 18 September 2025.

3. There is no contest about the third document – the Net Zero Plan.

The principles

1. The guiding principle in deciding whether to grant leave to re-open is whether the interests of justice are better served by allowing or rejecting the application[1].

   [1]EB v CT (No. 2) [2008] QSC 306 per Applegarth J.

2. Key considerations are:

   (a)the stage of the hearing that has been reached;

   (b)the significance of the new evidence;

   (c)the need for finality in litigation; and

   (d)prejudice to the opposing parties.

3. The High Court has said where a hearing is complete but reasons for judgment have not yet been delivered, the primary consideration should be that of embarrassment or prejudice to the other side[2].

   [2]Smith v New South Wales Bar Association (1992) 176 CLR 256 at 267.

4. There are other articulations of principle that apply to re-opening a case to admit further evidence where the hearing has concluded, but judgment has not been delivered[3].   That is not the situation here.  This hearing has not finished. 

   [3]Reid v Brett [2005] VSC 18 at [41].

5. Aside from the considerations at [14] above, there is a factor that is specific to this Court, hearing this kind of case. It was articulated by the President of the Court of Appeal in Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (No 1)[4].  After this Court publishes its recommendation, it is possible for the Minister responsible for the administration of the Mineral Resources Act 1989 to send the matter back to the Court if the Minister thinks that there is evidence that is relevant, but which has not been considered in the formulation of the recommendation. For that reason, the President observed that:

   … unlike a proceeding in the Supreme Court, there is no inevitable finality to the Land Court’s exercise of discretion to refuse to admit further evidence.  A balance has to be struck between the delay occasioned by the reopening of the case and the delay that might be occasioned anyway if a reopening were refused but the Minister later decided that the Land Court should consider the later information.

   [4][2019] 2 QR 271 at [28].

The position of the active objectors

1. The active objectors say that this case should be based on the best and most current information available[5]. They say the contentious documents would “greatly assist” the Court in its task. 

   [5]They rely on Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [41]-[42].

2. They point out that the two contentious documents were only published after the evidence phase concluded – and so there is no question here about the active objectors having made a decision not to lead the evidence. Or having failed to lead the evidence earlier.

3. Senior Counsel for the active objectors identified aspects of the National Climate Risk Assessment 2025 that may be relevant to the case.  The document was said to be not inconsistent with the evidence already admitted, but a more comprehensive picture of the “same sort of thing”. 

4. The Climate Change Authority’s 2035 Targets Advice is said to be akin to extrinsic material that could help understand the Net Zero Plan.

The position of Whitehaven

1. Opposing the National Climate Risk Assessment 2025 and the 2035 Targets Advice, Whitehaven says that the active objectors identify the wrong test.  Whitehaven says that this is not about whether the new documents are “important [and] current”. 

2. Whitehaven relies on the evidence of its solicitor, Mr Shute, who says:

   (a)there was not sufficient time for Whitehaven to address the documents before filing its written closing submissions on 19 September 2025;

   (b)it is not clear whether the active objectors intend to rely on the National Climate Risk Assessment 2025 as part of any submissions they may make regarding the evidence of Professor Bambrick, Professor Bindoff, Mr Coleman and Professor Possingham.  If that is the case, then depending on the submissions made, Whitehaven may suffer prejudice including that it may be necessary to cross-examine those witnesses;

   (c)it is not clear whether the active objectors intend to rely on the 2035 Targets Advice for the purpose of any submissions they may make regarding the evidence of Mr Gresswell or Ms Wilson.  If that is the case, Whitehaven may suffer prejudice including that it may be necessary to recall those witnesses;

   (d)if the documents are admitted, Whitehaven will incur additional legal costs and potentially costs of expert assistance given the volume of material involved and its technical nature.

3. Whitehaven disagrees that the 2035 Targets Advice is necessary to understand the Net Zero Plan.

4. Whitehaven is concerned that permitting the two documents might cause the need for other documents to have to go into evidence as well.  It cites the technical reports underpinning the National Climate Risk Assessment 2025, which may involve at least 2,376 pages of additional documents.

5. Whitehaven is also concerned about the potential flow-on effect if the Court permits the documents to go into evidence.  Whitehaven says that it would “likely … set a precedent for more and more documents to come in”. The statutory party describes this as the risk of the Court being “drip fed” matters as they develop. 

The position of the statutory party

1. The statutory party submits that:

   (a)whether the new evidence (1) is so material that the interests of justice require its admission and (2) would most probably affect the result of the case, are high thresholds.  It says that the most relevant touchstone is, “how would the documents probably affect the result of the case”.  It says that that is unknown. 

   (b)the closing of the evidence must have significance; and

   (c)this Court is not the last port of call.  Additional evidence can be considered by the ultimate decision makers. 

The weighing up of the competing considerations

1. If prejudice to Whitehaven can be avoided or ameliorated, the interests of justice would be best served at this stage of the hearing by the Court acting on the most current evidence available.  That is particularly so if that evidence is going to assist the Court.

2. There are still four days of hearing yet to occur.  That is an important factor.

3. As to prejudice, it is an unattractive proposition for the evidence phase to re-start; with witnesses having to come back for further cross-examination.  Or witnesses who were not previously required now having to attend to be cross-examined.

4. It is difficult to say whether that risk would be realised. 

5. It is also difficult to say how significant the documents are to the case.  The active objectors say that they are significant. 

6. The documents:

   (a)do not appear dissonant with the evidence lead by the active objectors;

   (b)do not appear to present a radically new concept or idea. 

7. While Whitehaven has filed its written submissions, there is sufficient time between now and 9 December for Whitehaven to consider the documents and make written or oral submissions about them.

8. The risk identified by Whitehaven that underlying technical reports may also have to go into evidence, is not determinative.  The National Climate Risk Assessment 2025 appears to be capable of being read and understood on its own.

9. Similarly, the risk of further evidence arriving on a rolling or drip-fed basis is not determinative.  As the December hearing dates draw closer, any fresh or updated new evidence would be more difficult to accommodate.  Any fresh or updated evidence would also have to be separately assessed as to how likely it would be to prejudice the opposing parties.

10. The main concern is whether allowing the two contentious documents into evidence would prompt the need for witnesses to be re-called (or called for the first time).

The result and the orders

1. The non-contentious document – the Net Zero Plan – will be marked as an exhibit.

2. The active objectors are entitled to reference the Net Zero Plan in their written closing submissions the subject of Order 4 of 5 September 2025.  Whitehaven and the Statutory Party are entitled to make submissions about the Net Zero Plan in their reply submissions, or orally in December.

3. As to the two contentious documents – the Court would be assisted by further information before determining whether those ought to become evidence in the case.   

4. That further information would most helpfully be obtained by permitting brief additional written submissions – in parallel with the written submissions being produced pursuant to the Order of 5 September 2025.

5. The brief additional written submissions:

   (a)must only address what each party would say about the two contentious documents, if those documents were admitted into evidence;

   (b)will quarantine the submissions about the contentious documents, away from the primary submissions in the case;

   (c)ought not impact or intersect with the primary written closing submissions being prepared pursuant to the Order of 5 September 2025 (ie. the written closing submissions should not refer to the brief additional written submissions that are being permitted pursuant to the Orders today).

6. The active objectors will have the opportunity to file submissions first, detailing what they would submit about the National Climate Risk Assessment 2025 and the 2035 Targets Advice, if those documents were to become evidence in the case.

7. Whitehaven and the statutory party will have the opportunity to reply to those separate submissions.

8. It may be that after seeing what the active objectors would submit with reference to the two contentious documents, Whitehaven and the Statutory Party may have fewer concerns. 

9. With the benefit of the separate, quarantined, submissions about the two contentious documents, the Court will be better placed to decide whether to admit those documents into evidence.  

Orders

1. The orders are:

   1.   The Commonwealth of Australia, Net Zero Plan, is admitted into evidence and marked as Exhibit ACF.0772;

   2.   By 4:00pm on Friday, 24 October 2025, the active objectors may file a separate written outline of submissions of no more than five pages, containing any submissions that they wish to advance about the Australian Climate Service, National Climate Risk Assessment 2025 and the Climate Change Authority, 2035 Targets Advice;

   3.   By 4:00pm on Monday, 24 November 2025, Whitehaven and the statutory party may file a separate written outline of submissions of no more than five pages in response to any document filed by the active objectors pursuant to order 2 above;

   4.   The General Application filed on 23 September 2025 is adjourned for further hearing at 10:00am on Wednesday, 3 December 2025.