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[2016] QLC 21
General information, not legal advice.
Land Court of Queensland
2016-03-10
Original judgment source is linked above.
PRACTICE AND PROCEDURE - application to reopen the hearing - guiding principle whether the interests of justice are better served by allowing or rejecting reopening application - case run with regard to one Guideline, new Guideline subsequently introduced - held due to fundamental change in the Guideline the applicant should have an opportunity to lead further evidence
EB v CT (No. 2) [2008] QSC 306
Emaas Pty Ltd v Mobil Oil Australia Ltd [2003] QCA 231
Finbrough Investments Pty Ltd v Airlie Beach Pty Ltd (1995) 1 Qd R 12
Inspector-General in Bankruptcy v Bradshaw [2006] FAA 22
Reid v Brett [2005] VSC 18
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
Ms McIntyre of Counsel for the appellant, Citigold Corporation Limited
Mr Dillon of Counsel for the respondent, the Department of Environment and Heritage Protection.
[1] I have before me an application made by the appellant to reopen its case in this matter. The orders that the appellant seeks are as follows:
"1. Orders 1 and 2 of the orders made on 4 March 2016 be vacated.
[2] I have heard significant oral argument today from the parties as to whether or not it is appropriate for this case to be reopened. At the heart of the matter, leaving to one side the issue of reopening with respect to a new affidavit from Mr Lynch, is the impact, if any, that a new guideline gazetted by the Government on Friday last and headed "Guideline Financial Assurance" under the Environmental Protection Act 1994, version 3.00 effective 4 March 2016 (guideline 3) has to these proceedings.
[3] To explain the matter further, the hearing has been conducted on the basis of a similarly worded version 2 of the guideline. The version 2 guideline and the version 3 guideline are in many respects the same but in some significant aspects, which relate specifically to this case, the two guidelines are quite different. This is particularly so with respect to footnote 6 of guideline 3 as opposed to footnote 7 of guideline 2.
[4] Having considered, in the time I have had available, the differences between guideline 2 and guideline 3, as the decision-maker in this case de novo, it is my preliminary view that the decision that I ultimately make in this matter could be markedly different if I were to apply guideline 2 as opposed to guideline 3. I use the word "could" deliberately as I have not made any final rulings or decisions or findings in this matter at all, of course, but I am looking at it from an abstract perspective.
[5] The position of the respondent is that guideline 3 is a matter which I must take into account on two grounds: either that it is to be taken into account by reference to guideline 2, or of its own volition as the relevant guideline in place prior to the decision being made. The position of the appellant is that the law that is to be applied in this matter is the law as at the date of the appeal and therefore, guideline 3 does not apply. That is also a fundamental issue and one which will be obviously of importance in the final determination of this matter.
[6] I have had the benefit of written submissions by the appellant setting out the law and factual material relating to the considerations to be taken into account in considering whether or not leave should be granted to reopen the matter or not. I incorporate into these reasons certain aspects of the appellant's written submissions.
[7] The application is made in accordance with s 7A(1)(b) of the Land Court Act 2000. The granting of leave to re-open is a discretionary matter for the Court.
[8] The guiding principle in deciding whether to grant leave to reopen is whether or not the interests of justice are better served by allowing or rejecting the application for leave to reopen. In that respect, the decision of the Queensland Supreme Court in Finbrough Investments Pty Ltd v Airlie Beach Pty Ltd[1] is relevant, which was cited with approval by the Court of Appeal of the Supreme Court of Queensland in the the case of Emaas Pty Ltd v Mobil Oil Australia Ltd.[2] I also refer to the decision of his Honour Justice Applegarth in the case of EB v CT (No. 2).[3]
[9] The four recognised classes of case in which the Court may grant leave to reopen after a judgment has been handed down were considered by Kenny J in Inspector-General in Bankruptcy v Bradshaw[4] as follows:
"The authorities indicate that, broadly speaking, there are four recognised classes of cases in which a court may leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SAStRp 43; [1937] SASR 285 at 287; Smith v New South Wales Bar Association [No 2] [1992] HCA 36; (1992) 108 ALR 55 at 61-2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 ('UTA') at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interest of justice are better served by allowing or rejecting the application for leave to re-open; see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 ('Silver Fox') at [22] and [25]."
[10] The considerations relevant to determining whether to permit the reopening of a case during the course of a trial were dealt with in the case of Smith v New South Wales Bar Association[5] as follows:
"If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending upon whether the case is simply one in which the hearing is complete, or one in which reasons for the judgement [sic] have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised."
"The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:
(a) the further evidence is so material that the interests of justice require its admission;
(b) the further evidence, if accepted, would most probably affect the result of the case;
(c) the further evidence could not by reasonable diligence have been discovered earlier; and
(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.
[12] The present application falls into the category identified in Reid v Brett.
[13] The respondent made a decision in relation to the amount and form of financial assurance payable by the appellant on 27 November 2014[8] (the original decision). The appellant sought an internal review of the original decision on 10 December 2014[9] and the respondent provided such review decision on 22 January 2015[10] (the review decision).
[14] In making its decision, the respondent was required to 'have regard to' the criteria stated in a guideline made by the chief executive and prescribed under a regulation. In this respect, the guideline referred to in s 295(3)(b) of the Act is prescribed in s 17B of the Environmental Protection Regulation 2008 (Qld) (the EP Regulation) as being "Financial Assurance under the Environmental Protection Act 1994" (the Prescribed Guideline or EM1010).
[15] The appellant, pursuant to s 524 of the Environmental Protection Act 1994 (Qld) (the EPA), filed:
(a) an appeal on 23 February 2015;[11] and
(b) an amended notice of appeal on 19 May 2015,[12]
against the respondent's administrative review decision to confirm the amount of financial assurance required to be paid by the appellant under the original decision.
[16] At all times from the making of the original decision up to and including 3 March 2016, the prescribed guideline was Guideline 2.[13]
[17] The hearing of the appeal commenced on 7 December 2015 at which point both the appellant and respondent opened their respective cases. It was clear from both parties that the hearing would be conducted as a hearing de novo and that the question for the Court was not whether the respondent had erred in making its original decision but rather what the right decision is in respect of the amount of financial assurance payable by the appellant.
[18] The hearing of evidence closed on 19 February 2016. Orders were made at this point for submissions to be exchanged on 3 March 2016. On 1 March 2016, the appellant sought an extension of time to file and serve its submissions. On 2 March 2016, the parties agreed by consent to extend the date on which submissions were to be filed to 7 March 2016.
Guideline - Financial assurance under the Environmental Protection Act 1994 (ESR/2015/1758, Version 3.00)
[19] On 4 March 2016, the respondent by gazettal replaced Guideline 2 (used by the parties and the experts for both sides to calculate the amount of financial assurance required for the appellant's environmental authority) with a new Guideline 3.
[20] The appellant has not had the opportunity to lead any evidence about compliance/non-compliance with the additional criteria in Guideline 3.
[21] Guideline 3, insofar as it is relevant to the appeal, appears to make four fundamental changes to EM1010. They are:
(a) the exclusion of GST from financial assurance calculations;[14]
(b) maintenance and monitoring costs payable can exceed the previous 5% recommendation (eg where rehabilitation on site has been substantially completed, but not progressively certified);[15]
(c) the introduction of the concept of "suitable infrastructure"[16] (ie infrastructure can remain on site, by agreement with the landowner, if the EA holder can demonstrate its retention is consistent with achieving the general rehabilitation goals of a site that is safe to humans and wildlife, non-polluting and stable). Examples of "suitable infrastructure" are provided in Appendix A (approved calculation method) and include bores, clean water dams and access roads; and
(d) the introduction of new criteria regarding departmental satisfaction with rehabilitation methodology[17] in the following terms:
The department must be satisfied with the rehabilitation methodology proposed and costed for FA calculations. In determining whether a proposed rehabilitation methodology is acceptable, the department may take into consideration the results of any predictive studies that assess the likelihood of success of proposed rehabilitation methods. This may be particularly relevant to waste rock dumps containing acid-generating material, tailings storage facilities, or brine / solid salt residues, where rehabilitation methods or disposal options require further investigation or site-specific trials.
[22] The changes in respect of GST and maintenance/monitoring costs would seem to be largely inconsequential to these proceedings. However, the changes identified at (c) and (d) above appear on their face to change the way in which financial assurance is decided and how the rehabilitation plan contained in the plan of operations is to be assessed.
[23] Having weighed all of the relevant factors into proper consideration in this matter, it is my reluctant view - and I say reluctant because this matter has dragged on since December 2015 in circumstances where it was expected to only last for a week and is now well beyond that - that this is an appropriate case where the matter should be reopened in light of the fundamental change that guideline 3 may bring to the ultimate decision in this matter and particularly in light of the strong position put by the respondent that the law to be applied is the law as in place at the making of my decision. That is a position which the appellant should have the opportunity to lead evidence with respect to and guideline 3 is most certainly a relevant consideration for all witnesses to take into account.
[24] Having dealt with the position with respect to guideline 3, I now turn to consider the reopening application with respect to a further affidavit from Mr Mark James Lynch of 7 March 2016. The circumstances relating to this application and the submissions which flow from those circumstances are explained by the appellant in its written submissions in this way:[18]
"60. The affidavit of Mark James Lynch affirmed 7 March 2016 (March Affidavit) corrects a mistaken apprehension of the facts - in particular, the owner of the land the subject of the Deed Poll which is marked 'MJL-47' and exhibited in the affidavit of Mark James Lynch affirmed 2 February 2016.
[25] Were this a matter where I was considering the question of reopening only with respect to Mr Lynch's affidavit and not the schedule 3 issue, then I am in considerable doubt as to whether or not the appellant should be given a further go at explaining the position with respect to the underlying agreements relating to the infrastructure. Two key factors come to mind and they are finality of litigation and prejudice. The issue regarding finality of litigation has been thrown out the door because of my findings with respect to guideline 3. In circumstances where it would appear, on the basis of the case run by the respondent, that there is very little difference from the respondent's case as to how the infrastructure agreements held between various parties, it being the respondent's case that the infrastructure subject to those agreements should not properly be excluded from the financial assurance calculations, then I see little prejudice flowing to the respondent.
[26] As I again emphasise, were it a question of finality of litigation, then I would not have found in favour of allowing this further material into the hearing. However, given all of the circumstances and, in particular, the small amount of prejudice, if any, to be suffered by the respondent, I will make orders allowing leave being given to include the affidavit of Mr Lynch of 7 March 2016 in the material.
[27] Because of the potential fundamental nature of the impact of guideline 3, both sides should have the opportunity to reconsider all of their evidence from all of their witnesses, and both sides should also have the opportunity to reconsider their cross-examination of all witnesses.
[28] There has been some debate as to whether or not it is appropriate at this time to consider the question of costs of the application to reopen. The appellant seeks an order that the respondent pay its costs on the indemnity basis. There are a significant number of factors which need to be taken into account in determining whether or not this is an appropriate case where costs should be awarded and if they are to be awarded, whether they should be awarded on an indemnity basis.
[29] Of course, there is also the issue of any costs impacts suffered by the respondent with respect to the inclusion of Mr Lynch's affidavit of 7 March 2016.
[30] Because of the confused nature of events as they have occurred and because of the potentially significant factors of public importance which may need to be considered by the Court in determining whether or not this is an appropriate matter where indemnity costs should be awarded, I consider that this is a matter where the parties should have time to put in affidavit material and that that affidavit material with respects to costs should properly be informed by what transpires, to some degree, with the rehearing of the matter and the impact of the prejudice that the parties have suffered. This is not to leave aside, though, my comments earlier during submissions in this matter as to whether or not there can be an inference drawn in this case that guideline 3 was brought into existence in any sense in a manner targeted to prejudice the case of the appellant. That is, of course, a very serious inference which would require very careful consideration by this Court before it could be made, but a matter of such importance, I feel it appropriate to refer to it in these reasons.
[31] In all those circumstances, I consider it appropriate on balance and not without some hesitation, to leave the question of costs of this application to be determined at the end of the substantive hearing.
(a) any lay witnesses it intends to call in the proceeding and broadly the matters the lay witness will give evidence about; and
(b) any expert witness it intends to call in the proceeding and the area of expertise of the expert witness.
(a) any lay witnesses it intends to call in the proceeding and broadly the matters the lay witness will give evidence about; and
(b) any expert witness it intends to call in the proceeding and the area of expertise of the expert witness.
[1] (1995) 1 Qd R 12 at 16-17.
[2] [2003] QCA 231 at paragraph 19.
[5] [1992] HCA 36; (1992) 176 CLR 256 at 266-267.
[6] [2008] QSC 306 at [4].
[7] [2005] VSC 18 at paragraph 41.
[15] At note 10 on p 25 of Guideline 3.
[18] Appellant's written submissions 10 March 2016 at [60] - [64].
Citigold Corporation Limited
Chief Executive, Department of Environment & Heritage Protection
(1995) 1 Qd R 12
(1992) 176 CLR 256
(1992) 108 ALR 55
(1991) 22 NSWLR 717
(1992) 28 NSWLR 471
(1974) 4 ALR 612