Coalpac Pty Ltd v Minister for Planning and Infrastructure

ex tempore Judgment 1Coalpac Pty Limited (Coalpac) is the applicant in proceedings commenced in Class 4 of this Court's jurisdiction. By a summons filed on 7 February 2013, it seeks a declaration that the mining project which is the subject of a project application lodged by it on 29 October 2010 has not been reviewed by the Planning Assessment Commission (the PAC) within the meaning of s 23D of the Environmental Planning and Assessment Act 1979 (the EPA Act). Coalpac also seeks a declaration to the effect that it is entitled to appeal to this Court from the deemed refusal of its project application pursuant to s 75K(2)(b) of the EPA Act. Such an appeal has been filed in proceedings numbered 13/10006. The basis upon which those declarations are sought requires some explanation to which I will shortly come. 2By a notice of motion filed on 15 April 2013, Coalpac seeks to vacate the dates fixed for hearing of these proceedings, namely 30 April 2013 and 1 May 2013. It is that notice of motion that I am presently determining. The hearing dates were fixed following a successful application, made by Coalpac upon the first return date of its summons, for the hearing of the proceedings to be expedited. Both parties have cooperated in accordance with the directions of the Court then made, such that the matter is ready to be heard on the dates that have been fixed. 3The application to vacate the hearing dates is made on two bases. First, Coalpac contends that by reason of steps recently taken by the Department of Planning in processing its project application, there exists the possibility that the Minister, by his delegate the PAC, will proceed to determine that application in the near future. The prospect that this might occur was the basis upon which the motion was founded when filed. 4The Second basis upon which Coalpac founds its application to vacate the hearing dates arises from a more recent event. On Monday of this week, the Chief Judge of this Court delivered his decision in Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48. The reasoning in that decision is said to have implications for the determination of Coalpac's project application. 5Before turning to the succinct and helpful submissions of the parties in relation to the present motion, it is necessary to state those facts necessary to place the present motion in context. 6In October 2010, Coalpac made an application under Pt 3A of the EPA Act seeking major project approval for the extension of an existing coal mine near the town of Cullen Bullen, in Central Western New South Wales. That application is still being processed within the Department of Planning, conformably with the provisions of Pt 3A. The process has been described as a multi-stage process. 7In January 2013, Coalpac lodged an appeal to this Court founded upon the deemed refusal of its project application (cl 8E(2) of the Environmental Planning and Assessment Regulation 2000). Following the commencement of that appeal, its competency was raised on behalf of the respondent Minister, having regard to the provisions of s 75K(1)(c) of the EPA Act. Coalpac's claimed entitlement to appeal was founded upon s 75K(2). Its entitlement to do so arises only if its project application has not been the subject of a review by the PAC. The Minister contended that such a review had in fact been carried out. In substance, the present Class 4 proceedings challenge the position taken by the Minister. 8The grounds upon which Coalpac maintains its entitlement to the declarations sought are not presently relevant to be recorded in any detail. In broad measure, the principal contention appears to be that the "review" relied upon by the Minister was not a review that accorded with the requirements of Pt 3A because it was not conducted in accordance with the principles of natural justice. There may be secondary grounds upon which Coalpac relies but all would seem to be comprehended under the rubric of judicial review. As I have said, both parties have prepared for hearing on an expedited basis and both have indicated they are ready to proceed on 30 April 2013. 9Notwithstanding commencement of both the present proceedings and Coalpac's Class 1 appeal (proceedings 13/10006), the Department of Planning has continued processing Coalpac's project application pursuant to Pt 3A. That process has included a recent request from the Director-General that Coalpac submit to him a preferred project report pursuant to s 75H(6)(b) of the EPA Act. The request for such a report is a step preliminary to the Director-General preparing an environmental assessment report as required by s 75I. The latter report must be prepared for the Minister prior to determination of the application by the PAC, as the Minister's delegate, pursuant to s 75J. 10Coalpac's preferred project report was submitted to the Director-General on 8 April 2013. However, the Director-General has not yet commenced the preparation of his report. When it will be prepared is not known. Nonetheless, the fact that the project report was requested and has now been provided was relied upon by Coalpac to argue for the prospect that both its Class 1 appeal and present proceedings may be unnecessary because a determination of its project application may be forthcoming and, so it seeks to imply, may be favourable to it. No material has been tendered before me to indicate, even by inference, that a determination favourable to Coalpac is a distinct possibility. 11The principles that should govern the determination of an application to vacate hearing dates in the present circumstances are not in dispute. They are helpfully set out in the submissions made on behalf of the Minister. The discretion to adjourn or vacate a hearing is essentially governed by the provisions of ss 56 and 58 Civil Procedure Act 2005. The discretion is to be exercised so that it meets the overriding purpose of achieving the just, quick and cheap resolution of the real issues in the proceedings and in a manner that accords with the dictates of justice, as described in s 58. 12Applying those principles to an application of the present kind would ordinarily require that where proceedings have been regularly fixed for hearing, with due notice to affected parties, the hearing should commence on the appointed day and continue until completion. Although Coalpac's motion is opposed by the Minister, both parties acknowledge that even if the Minister had consented to the application, the Court would not necessarily vacate the hearing, given the competing considerations that must be brought to bear upon such an application. Those considerations include the impact upon claims of other litigants and the efficient use of both court and judicial resources (Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [5] and [30]; Newton v Ellis [2012] NSWCA 106 at [19]). 13Mr M Leeming SC, who appeared on behalf of Coalpac, submitted that the hearing and determination of the proceedings fixed to commence later this month may be a futile exercise, potentially benefiting only the legal practitioners for the parties, having regard to the two bases for his application. The first of those, relating to the continued processing of the project application by the Department of Planning, is a matter to which I have already referred and discussed. However, I infer that greater emphasis, in support of the application, is placed upon the reasoning of the Chief Judge in Bulga. 14Mr Leeming has identified a number of passages in that decision which, according to his submission, have general application to projects for coal mining of the kind propounded by Coalpac and which it would wish to have an opportunity to consider without the pressure of time imposed by the pending hearing of these proceedings. In short, he indicates that, with the opportunity for measured consideration of observations made by the Chief Judge in Bulga, it may be that Coalpac would not wish to proceed with its Class 1 appeal, the present proceedings or its project application presently being processed on behalf of the Minister. He submits that a number of the observations made by the Chief Judge would appear to elevate the level of consideration for projects involving the extension of an existing coal mine beyond that previously considered to be appropriate either by applicants for approval or by the Department of Planning. 15The judgment in Bulga is a lengthy one, extending over some 176 pages and containing 500 paragraphs in a closely reasoned decision. As I have indicated, the judgment was delivered only on Monday last. The argument propounded on behalf of Coalpac is that there needs to be an adequate opportunity for the reasons of the Chief Judge to be considered, its implications assessed by those advising Coalpac and for both the consideration and implications to be considered at a high level within the corporate structure of Coalpac so that a determination can be made as to the future course to be taken in the proceedings before the Court. The pressure of a hearing due to commence on 30 April inhibits this process. If the decision is ultimately taken that Coalpac does not wish to proceed with either of its present proceedings in this Court or with its project application, then the hearing to commence on 30 April will be an exercise in futility. 16The present application by Coalpac is not only to vacate the hearing due to commence on 30 April but also to have the proceedings stood into the Court's list on Friday 18 May 2013. Coalpac will then indicate to the Court whether it wishes to proceed, in which case a hearing date would be taken, or whether it wishes to discontinue both sets of proceedings. As Ms Richardson, who appeared on behalf of the Minister, has pointed out, although the application would appear to involve an adjournment for one month, in truth vacating the present hearing dates would result, assuming the matter proceeds, in a hearing that is unlikely to commence within the next three months. 17In opposing Coalpac's motion, Ms Richardson submitted, in my view correctly, that the judgment in Bulga has no legal or factual bearing upon the determination to be made in the present Class 4 proceedings. As I have indicated, these proceedings have, as their focus, a step taken by or on behalf of the Minister at a relatively early stage in processing Coalpac's project application. The proceedings seek to impugn that step. The challenge is unrelated to any of the observations made by the Chief Judge in Bulga. The impugned action represents only an intermediate step in the process of consideration and in no way bears upon the end result of that process. 18However, the determination of the present proceedings has two potential consequences. The outcome will determine Coalpac's entitlement to sustain its Class 1 appeal. Further, if Coalpac is successful, the Minister, through his Department, may need to revisit steps already taken as part of the multi-stage process required to inform the Minister's proper processing and consideration of the project application, conformably with Pt 3A. 19At a practical level, I find the competing submissions in this matter finely balanced. However, it seems to me that the principles that I have identified as pertaining to an application of the present kind must properly result in Coalpac's application to vacate the hearing dates being refused. The determination of the questions raised in these Class 4 proceedings can, to my mind, proceed with utility on the days presently fixed for hearing. This is essentially the case for the reason articulated on behalf of the Minister and earlier summarised by me. 20If the implications of the reasons for decision in Bulga are as significant as Coalpac suggests, the consequence must be that those advising the Company together with the procedures for decision making within the Company will need to move with greater expedition than would otherwise be the case. Thus, if advice is given as to the perceived implications of the Bulga judgment, such that the present project application should not proceed, at least in its present form, and that advice accepted by Coalpac, no doubt appropriate notice can be given to the Minister of this fact and the present proceedings discontinued with such consequences that may attend that course. If that course is taken prior to 30 April then, at the very least, the cost of the hearing itself will be avoided.