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

The active objectors seek leave to tender three new documents.
The “evidence phase” of the hearing concluded on 5 September.
The matter is listed for four days of oral submissions in December.
Whitehaven opposes two of the three new documents going in.
The statutory party has the same position as Whitehaven.

The state of the hearing

Evidence was heard between 21 July and 5 September 2025.
At the end of the evidence, the parties asked for the opportunity to make both written and oral closing submissions.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Whitehaven WS Pty Ltd v Australian Conservation Foundation I...

Details

AGLC: Whitehaven WS Pty Ltd v Australian Conservation Foundation Inc (No 3) [2025] QLC 26
Case: [2025] QLC 26
Decision Date: 17 October 2025

CaseChat Overview and Summary

In the Federal Court of Australia, Whitehaven WS Pty Ltd, an entity engaged in coal mining operations, brought an action against the Australian Conservation Foundation Inc. The dispute centred around the admissibility of certain evidence and the procedure to be followed during the trial, specifically whether additional evidence could be presented and witnesses recalled. The court was tasked with determining whether the plaintiff could adduce further evidence post the close of their case, and if so, under what conditions this could be permitted. Additionally, the court had to consider the implications of the admission of new evidence on the fairness and efficiency of the trial process.

The court identified that the central legal issue was whether the plaintiff's application to reopen their case and recall witnesses should be granted, and if so, what criteria should be applied in assessing such applications. The plaintiff argued that the new evidence was crucial to their case and that the admission of such evidence would not prejudice the opposing party. The defendant, on the other hand, contended that the plaintiff's attempt to reopen their case was an abuse of process and would unduly delay the proceedings.

In delivering the judgment, the court noted that while it is generally within the discretion of the court to allow a party to reopen their case and recall witnesses, this power should be exercised cautiously. The court held that the plaintiff's application could be granted if the new evidence was relevant, material, and could not have been reasonably anticipated at the time the case was initially presented. The court further outlined that the decision to reopen the case should not unduly prejudice the opposing party and should not result in an unfair advantage to the party seeking to reopen their case. The court admitted the Commonwealth of Australia, Net Zero Plan, into evidence and scheduled further hearings to allow both parties to address the implications of the new evidence on their respective cases.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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