HIS HONOUR: On 13 September 2016, Pepper J gave her initial judgment in 4Nature Incorporated v Centennial Springvale Pty Ltd [2016] NSWLEC 121 (the first judgment), in which her Honour dismissed an Amended Summons that had commenced, and continued, proceedings by the Applicant environment group challenging the activities of the Respondent. What was sought was whether or not the consent under which a mine was operating was valid or not. It is unnecessary for me to traverse, in detail, the nature of her Honour's findings. 4Nature Incorporated (the Applicant) appealed against her Honour's decision. That appeal was heard on 31 May 2017 and, on 2 August 2017, the Court of Appeal upheld the appeal (4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191), setting aside the original determination of this Court. Over the following short period, there were discussions as to how the matter should be further dealt with.
By consent, on 30 August 2017, the matter was remitted to this Court for further consideration. I am advised that the First and Second Respondents had expected that the matter would be placed before the List Judge on 8 September 2017. However, it is to be observed that the First and Second Respondents took no steps after 30 August 2017 to ensure that the matter was put before the List Judge on that day.
By communication between the legal representatives of the First and Second Respondents, and the legal representative of the Applicant, on 13 September 2017, the Applicant's legal representative was notified for the first time that the First and Second Respondents proposed to seek a hearing of the remitted matter in September 2017 - that is, within a some two-week period after the date of that communication (that comes from the Applicant's solicitor's affidavit at (9)).
On 15 September 2017, at 8.46 am, the Applicant's solicitor advised the First and Second Respondents' solicitors that they were unable to accommodate such a hearing on that short notice but proposed a timetable leading up to a hearing, which the Applicants advised could occur on 16 and 17 October 2017. I will return to the reasons for that later (that comes from the Applicant's solicitor's affidavit at (14) and Annexure F to that affidavit).
4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWLEC 133 | Case summary | Zoe
On 15 September 2017, the First and Second Respondents appeared before me as the List Judge. On behalf of the First and Second Respondents, I was handed two sets of draft Short Minutes of Order:
1. one based on a timetable proposing a hearing on 25 September 2017; and
2. the other, based on a timetable submitting that there should be a hearing on 28 September 2017.
There was no application for expedition.
There was no evidence - apart from that which was put by Ms Davidson on behalf of the First and Second Respondents from the Bar Table - no evidence, whatsoever, in support; merely two competing sets of short minutes.
Mr Eastman, counsel for the Applicant, indicated to me that the position was, for reasons to which I will return as I have earlier indicated, that the Applicant would not be in a position to deal with the matter until 16 and 17 October 2017.
In the absence of a proper application seeking a hearing date and reasons for it in a proper evidentiary fashion, I stood the matter over to be heard today. Ms Davidson has now taken me to comments by the Court of Appeal, in Rossi v Living Choice Australia Limited [2015] NSWCA 244 [52], on the proposition that I need to facilitate the just, quick and cheap resolution of the real issues in the proceedings; that being that which is provided for by s 56 of the Civil Procedure Act 2005.
I am satisfied that, in this instance, the tension is between the just disposition of the proceedings and the quick disposition of the proceedings - a tension which I, to the extent that I am satisfied that there might be a real tension, need to resolve this afternoon.
When the matter came before me this morning, I had a Notice of Motion seeking to have the matter set down for hearing on 25 September 2017. It was supported by an affidavit from Mr Mark Brennan, solicitor on the record for the First and Second Respondents. It set out in it the question of Mr Brennan's availability; he being absent on leave from 2 October to 21 October 2017, and the absence on leave of Mr Michael Cairney, who is the CEO and Managing Director of Centennial Coal. I indicated that, to the extent that it was relevant - and I am satisfied that it is only relevant to a limited extent - those matters would not detain me.
In addition, the First and Second Respondents seek to rely on evidence given today, both by affidavit and orally from Mr Cairney and, secondly, from a Mr Mark Collette, who is a senior executive of Energy Australia Ltd.
I will return to that evidence shortly but observe, at this stage, that some portions of the affidavit evidence were objected to by Mr Eastman. His objections were based on s 75 or, in the alternative, s 78 or, in the alternative, s 135 of the Evidence Act 1995 (the Evidence Act).
I determined that it was appropriate to hear evidence concerning the objected‑to paragraphs of Mr Cairney's affidavit and Mr Collette's affidavit on a voir dire basis and did so.
To the extent that there remained objections to their evidence, I permitted their evidence pursuant to s 75 of the Evidence Act, which permits me to allow such evidence that is otherwise hearsay for the purposes of interlocutory proceedings. As a consequence, it was unnecessary for me to deal with that contested evidence pursuant to s 78 or s 135 of the Evidence Act. Any further objections that might be raised pursuant to those provisions can be raised with the Trial Judge if they are to be pressed.
Having set out that timing and procedural history, it is necessary to set out, briefly, factually, what engages, in the First and Second Respondents' view, the need for urgency in hearing and determining these matters.
The first is the factual operational position of the Springvale Mine and its relationship to Energy Australia's supply of electricity into the Australian eastern states' electricity grid. Energy Australia's power that is supplied into the eastern Australian grid comes from the Mount Piper Power Station, which is a coal-fired power station located some five kilometres east of Portland in the Blue Mountains region of New South Wales. I am repeating here material that is contained in paragraphs (7) to (12) of the affidavit of Mark Collette dated 27 June 2017.
Mr Collette continued:
The power station was constructed during the mid-1980s with commercial operations commencing in 1992. The power station comprises two 700‑megawatt coal-fired steam turbine generators which have the capacity to meet the energy needs of approximately 1.17 million homes in New South Wales every year. The power station can provide up to 15% of the state's electricity. However, in 2015 this dropped to 8% as a result of fuel conservation measures that had to be undertaken as a result of a delay in the approvals process for the grant of the state-significant development consent. This delay resulted in the mine being temporarily closed for an eight-week period which ended on 16 October 2015. In 2016, production was around 11% of the state's electricity demand. The mine - that is, the Springvale Mine - is the sole provider of coal to the power station.
Mr Collette then goes on to observe that the coal is conveyed to the mine by a dedicated and covered overland conveyor system from the mine pit to the power station.
In his affidavit of 14 September 2017, Mr Collette deals with the state of stockpiles at the power station and I am satisfied that it is unnecessary to deal with that at the present time. It is, however, appropriate to observe that at (28(b)) of that affidavit, Mr Collette observes that a little less than 10,000 tonnes of coal is delivered to the power station on a daily basis and that, depending on what the nominal capacity of a truck might be, if coal had to be trucked to the station in lieu of being provided by the overland conveyor belt from the Springvale Mine but to be trucked using some other source of coal, there would be, at one size of truck, 345 deliveries per day - that is, one every 4.2 minutes - and, if larger trucks were used, it would be 242 truck deliveries per day at rate of one every six minutes.
It is unnecessary for me to deal with the factual position as to the relationship between the mine and the power station further, save to observe as I do that in his affidavit of 28 June 2017, Mr Cairney confirms, at (10), that that mine is the sole provider of coal to the power station.
There are two tensions, or two factors in tension, as I have earlier indicated. It is necessary for me to explain briefly how those tensions arise.
The first tension is the timetabling imperative to which Mr Cairney and Mr Collette have both given written and oral evidence concerning the finalisation of contractual and financial processes to make possible the construction of a water treatment plant on a build, own, operate, transfer process, otherwise known as a BOOT process, that will clean the water from the mine that is pumped to the surface in a fashion that will permit it to be used as part of the power station's operation and, as a result, have no longer any discharges from the mine's activity into the Cox's River - the Cox's River being one of the many sources of water for Sydney's drinking water supply.
The position is that for some time the Company and Energy Australia have been involved in a tendering process for the development of a proposal for the BOOT water treatment plant. They have reached the position whereby, from about the beginning of July 2017, Energy Australia has authorised the preferred contractor to undertake, in anticipation, a number of preparatory works that would enable the plant to be constructed and brought into operation by 30 June 2019 - that being the date by which there is to be, as a consequence of a development consent, no discharge of water into the Cox's River from the mine.
The ability for those preliminary works to continue will expire during the month of October 2017. What Mr Cairney described as the "drop dead date" of 27 October 2017 arises for two reasons:
1. the first is the necessity for Energy Australia to finalise in conjunction - with participation by the First and Second Respondents - a contractual arrangement with the preferred contractor for the construction of the water treatment plant - that to occur by 20 October 2017; and
2. on the other hand, the necessity to finalise the financial arrangements, which is a part bank finance, part equity finance arrangement involving a number of financial participants, needs to be done to achieve what was described as financial closure by 27 October 2017.
The evidence is that there is no obligation on the lending or equity bodies, but particularly on the lending bodies, to provide any finance if financial closure is not achieved by 31 October 2017.
The amount of the contract is significant, being of the order of $150 million. Those, at least as I have apprehended it, are the fundamental elements of Mr Cairney's evidence.
The evidence from Mr Collette is entirely consistent with that timetable, and that the contract for the construction of the treatment plant is a necessary prerequisite to the release of, or financial arrangements for, the carrying out of the project.
I am satisfied that, in the terms of the evidence given by each of them, there is a real risk if the project contract documentation and financing is not achieved by 27 October 2017 (though there may be modest elasticity until the end of October 2017 in that date). However, there must be sufficient time for the proceedings to be held and determined prior to the time that would permit those arrangements to be finalised.
It is, however, I consider, reasonable to assume that the preparation of the contractual documentation necessary to provide an appropriate platform for the finalisation of the financing arrangements can continue whilever the proceedings remain to be determined. It is critical, therefore, that the matter be heard and determined in sufficient time for that to happen.
On the other hand, there is the question of balancing the rights of the Applicant organisation.
I advanced to the parties the proposition that it might be appropriate, if I were minded to set a timetable or have the parties determine a timetable based on the hearing on 16 and 17 October 2017, to have whichever judge hears and determines the matter give an answer within a very short period of time, but to provide reasons for that answer in a more relaxed, but nonetheless expeditious, timetable.
I have contemplated the Court's diary for judge hearing dates and am satisfied that not only if I were to set the matter down on 16 and 17 October 2017, it would be possible for the hearing to start at 9.00 am on each of those days to ensure that the hearing could be completed by the end of the second day.
That which is put on behalf of the Applicant organisation is that it would be unreasonable for them to be put at the disadvantage of having to prepare their evidence and file and serve it, even if their witnesses were available, within the week that is available from now until the hearing, let alone to have their senior counsel be available for preparation of submissions and advice on evidence in that time.
I observe that the First and Second Respondents have had some time to prepare their evidentiary material and have provided a range of affidavits upon which they propose to rely.
I am satisfied that not only the availability of counsel for the Applicant organisation but the availability of their experts and the ability to serve the material weighs heavily on permitting them the additional time and not running the risk of denying them the benefit of the outcome that they achieved in the Court of Appeal merely because of the paucity of time permitted to them for their preparation.
I am, therefore, satisfied that it is appropriate to set the matter down for hearing on 16 and 17 October 2017 on the basis that I have outlined.
I should observe that, in addition to the tension between justness and the quickness as weighs in favour of the Applicant, I am also satisfied that the failure of the First and Second Respondents to take any steps after 30 August 2017 to ensure that the matter came on for early directions before the List Judge and, indeed, some further formal application for expedition made promptly on or after 30 August 2017, weighs against the request by the First and Second Respondents.
Had they come earlier, and promptly, it might well be that the Court would have been persuaded to give them 28 September 2017 because there would have been a reasonable period of time for the Applicant to respond. They did not, and that weighs against them being given the indulgences that they seek now.
I therefore set the matter down for hearing on 16 and 17 October 2017, commencing at 9.00 am on 16 October 2017, and I invite the parties to confer now about the terms of a timetable that will accommodate everybody, including the filing and serving of written submissions by all three parties and any submissions in reply.
[2]
Amendments
05 October 2017 - Deleted paragraph number behind citation, Rossi v Living Choice Australia Limited [2015] NSWCA 244, on the coversheet.
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Decision last updated: 05 October 2017