Environment Protection Authority v Maules Creek Coal

Representation: Counsel:
G Marsden (Prosecutor, respondent on the motion)
T Howard SC (Defendant, applicant on the motion)
Solicitors:
Legal Services Branch, Environment Protection Authority (Prosecutor, respondent on the motion)
King & Wood Mallesons (Defendant, applicant on the motion)

File Number(s): 2021/234554; 2021/234556; 2021/234557; 2021/234558

Publication restriction: Nil

JUDGMENT

Introduction

1. On 2 September 2025, the defendant in these Class 5 criminal proceedings, Maules Creek Coal Pty Ltd ACN 140 533 875 (the defendant), filed a notice of motion seeking that “Order 13(b) and Order 13(c) made by Pritchard J on 27 August 2025 be stayed until 30 September 2025.” For the reasons that follow, I have determined to grant the relief sought in the notice of motion.

Background

2. On 4 October 2024, in Environment Protection Authority v Maules Creek Coal Pty Ltd (No 3) [1] (the liability judgment), following a contested hearing, I found the defendant guilty of three offences against s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), and one offence against s 140(1) of the POEO Act. On 31 October 2024, final orders were entered.

3. On 27 August 2025, I delivered sentence in these proceedings: Environment Protection Authority v Maules Creek Coal (No 4) [2] (the jud****gment on sentence). The orders included at 13(b) and 13(c) the following:

(13) Pursuant to s 250(1)(b) of the POEO Act, the defendant, at its own expense:

…

(b) is to cause a notice in the form of Annexure B to be placed in the next annual Sustainability Report published by Whitehaven Coal Limited after the date of this order; and

(c) within 14 days of the date of this order, is to publicise the offences and the orders made against it by posting the text of Annexure B to these orders on Whitehaven Coal's LinkedIn page, together with a hyperlink directly to the Court's judgment as published on the New South Wales Caselaw website and tagging the Environment Protection Authority in the post. The post is to be made between the times of 8am and 10am or between 4.30pm and 6.30pm on a weekday. This post must remain a pinned post on the Linkedin page for a minimum of 7 days.

4. In support of its notice of motion for an interim stay of orders 13(b) and 13(c) until 30 September 2025, the defendant relied on the affidavit of Roisin Lake dated 2 September 2025, and a written outline of submissions filed on 5 September 2025.

5. Annexed to Ms Lake’s affidavit is a copy of the defendant’s notice of intention to appeal to the Court of Criminal Appeal filed on 1 November 2024.

6. In her affidavit, Ms Lake foreshadowed that the defendant will file another notice of motion and seek a stay of all orders in the judgment on sentence pending it filing a notice of appeal in the Court of Criminal Appeal. The defendant said that it expects to file its notice of appeal by 19 September 2025.

7. Each of the two publication orders 13(b) and 13(c) in the judgment on sentence require compliance prior to 19 September 2025. As such, the defendant only seeks an interim stay of those orders until 30 September 2025 by when it will have filed its notice of appeal. Ms Lake said that once the notice of appeal has been filed, the defendant will promptly make a further application to this Court, by way of a further notice of motion, seeking a broader stay of all the orders made in the sentencing judgment until the appeal has been heard and determined by the Court of Criminal Appeal. In support of that broader stay application, Ms Lake said that the defendant intends to tender a notice of appeal.

8. Ms Lake deposes that the defendant seeks a stay of orders 13(b) and 13(c) because the making of the publications as required by those orders “will have caused irreparable reputational damage to the Defendant, including because those publications could not be subsequently unpublished and that damage could not be undone by the successful outcome in the Appeal.” Further, Ms Lake says that the stay sought is “necessary to preserve the subject matter of the Appeal and ensure that the orders that will be sought in the Appeal seeking to quash Orders 13(b) and 13(c) made in the sentencing judgment are not rendered nugatory.”

Defendant’s submissions on the motion

9. In its written submissions filed in Court on 5 September 2025, the defendant submitted that in the disposition of the appeal from the liability judgment, the defendant will seek orders quashing the four convictions and setting aside all the orders in the judgment on sentence.

10. In Court this morning, Mr Howard SC for the defendant submitted that the test for the grant of a stay is the balance of convenience. In this case, the defendant submitted, the balance of convenience favours the grant of a stay until 30 September 2025 pending the filing of a further notice of motion seeking to stay all the orders in the judgment on sentence.

11. Mr Howard submitted, first, as deposed to by Ms Lake, that if the defendant is required to satisfy the two publications orders, and subsequently its appeal from the liability judgment is successful, those publications would have caused it irreparable reputational damage.

12. Second, Mr Howard submitted, the interim stay of orders 13(b) and 13(c) sought by the defendant is necessary to preserve the subject matter of the appeal by ensuring that the orders that will be sought on the appeal to quash orders 13(b) and 13(c) will not be rendered nugatory.

13. Third, Mr Howard submitted, the granting of a short interim stay would not cause any material prejudice to the prosecutor and would enable the Court to consider the broader question of whether to grant a stay of all the orders on sentence pending the disposition of the appeal after the defendant files a notice of appeal later in September 2025.

14. The defendant referred to the decision of the Court of Appeal in Alexander & Ors v Cambridge Credit Corporation Ltd & Ano**r [3] (Alexander v Cambridge Credit) at 694-695 as applied and explained by the Court of Criminal Appeal in Harris v Harrison [4] . In Alexander v Cambridge Credit, the Court of Appeal (Kirby P, Hope and McHugh JJ) said at 693-694 in relation to principles governing stays (footnote added):

…First, there is no suggestion in the rule that “special” or “exceptional” circumstances must be established before the discretion conferred upon the Court will be exercised. …. If it had been contemplated that “special circumstances” were required or that “exceptional circumstances” should be established to attract the discretion to grant a stay pending appeal, it might have been supposed that the legislature would have said so in terms. …

Secondly, the principle and the like expression of it in Barker v Lavery (1885) 14 QBD 769 and in Monk v Bartram first appear in decisions of the courts when the facility of appeal (which was not generally available at common law) was still relatively novel. In these circumstances the courts might more readily look upon appeals as an exceptional process. Today this is not the case. Far from being exceptional, appeals are common. …Where facts are undisputed or, though disputed, are established by the finding of the trial judge, the appellate court is said to be in as good a position as the trial judge to decide the proper inferences to be drawn from those facts. Though the appeal court will give respect and weight to the conclusion of the trial judge, once having reached its own conclusion, it must not shrink from giving effect to it. …

Thirdly, recent decisions of this Court, reflecting the language of the rules and the frequency and nature of appeals, have expressed the approach to be taken without reference to the need for “special” or “exceptional” circumstances to justify a stay. [5] …

Although it is true that, in a number of more recent decisions of the Court, reference has been made to the requirement of “exceptional” and “special” circumstances, and although the same requirement appears still to be observed in Victoria, the general practice of the Court conforms more closely to that stated by Mahoney JA [in Re Middle Harbour Investments Ltd (In Liq) (Court of Appeal, 15 December 1976, unreported)]. …

There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties: Trlin. The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears: see Supreme Court Rules, Pt 51, r 10; Waller v Todorovic. The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it: Attorney-General v Emerson (1889) 24 QBD 56. Where there is a risk that if a stay is granted, the assets of the applicant will be disposed of, the Court may, in the exercise of its discretion, refuse to grant a stay: cf Clyne v Deputy Commissioner of Taxation (1982) 56 ALJR 857.

15. Harris v Harrison related to an appeal against a decision in the summary criminal jurisdiction of this Court. The defendant who had been convicted of offences contrary to the Water Management Act 2000 (NSW) applied for a stay of publication orders*.* Beazley P (McCallum and Schmidt JJ agreeing) said at [24]-[26]:

24 … the onus of persuading the court to grant a stay is on the party seeking the stay: Waller v Todorovic (Court of Appeal, 21 December 1979, unreported); Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694. An applicant for a stay of execution of the orders of a trial court, pending an appeal to an intermediate appellate court, is required to establish a proper basis for a stay that will be fair to all parties: Trlin v Marac Finance Australia Ltd (Court of Appeal, 4 March 1985, unreported); Alexander v Cambridge Credit Corp at 694. It is not necessary to establish "special" or "exceptional" circumstances: Alexander v Cambridge Credit Corp at 693-694.

25 A discretionary consideration that would tend to the grant of a stay is where there is a risk that an appeal will prove abortive if a party succeeds on the appeal if the stay is not granted: Alexander v Cambridge Credit at 695. Likewise, if there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted, which cannot be addressed by a successful appeal, a stay may be warranted: O'Brien v Australian Securities and Investments Commission [2009] NSWCA 312; 74 ACSR 324 at [25].

26 The Court, in determining whether to grant a stay, will make a preliminary assessment as to whether the applicant has an arguable case on appeal: Alexander v Cambridge Credit at 695.

16. In oral submissions, Mr Howard referred to her Honour’s consideration of the application for a stay, where the President said at [52]-[53] (emphasis added):

52 Mr Harris also submitted that if some other order is made on the appeal, his reputation will already have been irreversibly damaged by the publication of the notice in its present terms. In response to the prosecutor's argument, which is set out below, at [56], that the terms of the court order are already in the public domain, Mr Harris argued that a publication pursuant to a court order carries with it a particular weight that would not necessarily be accorded to a report in the newspaper. Accordingly, the fact that there was already some information in the public domain was not an answer to his concern.

53 The prosecutor contended that the terms of the publication ordered were such that they would publicise the offence "in the most objectively neutral terms". The prosecutor also contended that the publication order made in this case was consistent with the approach taken by the Land and Environment Court in applying such powers in other Acts, noting that the publication order was ordered as an additional option to the imposition of a penalty. In this regard, the prosecutor emphasised that a publication order served the purpose of general deterrence and was not in itself part of a sentence or the imposition of punishment, even if punishment was a secondary purpose. In support of this argument, the prosecutor relied upon the Explanatory Notes, which noted that s 353G was "a provision that enables a court to make certain additional orders against the offender" (emphasis added)

54 The prosecutor also refuted Mr Harris' contention that the publication order would have an adverse effect on his reputation. He submitted that Mr Harris' submission ignored the fact that he had pleaded guilty to the offence, so that regardless of the outcome of the sentencing appeal, the criminal conviction would remain, with any consequent damage to reputation that that might involve. In any event, the published reasons of the trial judge and media reports of the judgment, were already in the public domain.

55 The prosecutor also informed the Court that the media reports, which had been based upon a media release issued by the New South Wales Department of Primary Industries, were inaccurate, in that they asserted that the offence was committed at a time of severe water shortage and, at least, imputed that Mr Harris had tampered with the meter for the purpose of stealing water. Both these matters were wrong. The gravamen of this submission was that even though the media reporting had been inaccurate, Mr Harris' reputation had already suffered damage so that the "neutrally objective" publication ordered by the Court would not cause further damage. On this approach, it could not be said, therefore, that the publication of the notice ordered by the Court would render nugatory the subject matter of the appeal.

56 The prosecutor relied upon the observations of the Court of Appeal in O'Brien v Australian Securities and Investments Commission as to the utility of a stay when damage to the appellant's reputation had already been caused by the publication of the primary judgment. In that case, the Court noted that if the appellant's reputation was to be reinstated, it would only be by being successful on the appeal. That case, however, involved an appeal against liability as well as against sentence. In this case, as already indicated, the prosecutor relied upon the fact that Mr Harris had pleaded guilty and there was no conviction appeal.

57 The prosecutor also submitted that the words Mr Harris had sought to be added to the publication order would not have reflected the sentencing judge's findings. The prosecutor submitted that her Honour's rejection of Mr Harris' attempt to have these words included was appropriate, having regard to her findings.

17. The Court in Harris v Harrison was satisfied that Mr Harris had made out his application for a stay:

58 In my opinion, Mr Harris has made out a case for a stay. I consider he has demonstrated that he has an arguable case on the appeal. If he is successful, it is possible that the publication order would not be made, or its content may be different, so that unless a stay is ordered, a significant aspect of the appeal, which challenges the making of the publication order, will have no substantive impact if the publication has already occurred.

18. Mr Howard submitted that the publication orders 13(b) and 13(c) “would certainly inevitably cause reputational damage, very serious reputational damage, additional to the publication of her Honour’s judgment”. The proposition that any reputational damage had already been done was submitted to ignore or understate the actual impact of the orders that are required to be complied with.

19. Mr Howard submitted that on the defendant’s notice of motion seeking a stay of orders 13(b) and 13(c) until 30 September 2025, the defendant need not and did not argue a reasonable case on appeal, as it was only seeking a stay for a short period of time, not pending the outcome of an appeal. Mr Howard submitted that, in any event, the defendant does have an arguable case on appeal.

20. Mr Howard further referred to the Court of Appeal’s decision in Chen v Lym International [6] (Chen) where, at [12], Beazley JA referred to the principles governing the grant of a stay and said that two matters need to be established until the disposition of an appeal, namely the appeal must have reasonable prospects of success; and the balance of convenience must favour the grant of a stay. However, the underlying principle is “a proper case for a stay”. Her Honour said that special or exceptional circumstances need not be shown, and that it is sufficient to demonstrate a reason for the stay.

21. Mr Howard submitted that, in this case, the balance of convenience equation is different to the case of seeking a “broader stay” as a stay of orders 13(b) and 13(c) would only be until 30 September 2025, not until the disposition of the appeal. Mr Howard submitted that it is not necessary that the Court determine that there is a case on appeal. But if the Court “wants” to take it into consideration, then three of four of the charges in relation to which the defendant was convicted in the liability judgment relate to the carrying out of licenced activities not in a competent manner. The complaint about the blast was its noise, that is the air pressure. The defendant had a licence that imposes conditions specifically directed to that matter, and the defendant complied with those conditions. In those circumstances, whatever else the notice of appeal might say, the Court should be satisfied that there is an arguable case on appeal “to the extent that that weighs on the Court at this point in time”.

22. I drew Mr Howard’s attention to the decision of Tobias JA in O'Brien v Australian Securities and Investments Commissioner; Gillfillan v Australian Securities and Investments Commissioner; Koffel v Australian Securities and Investments Commission [7] (O’Brien) where his Honour said at [74] in relation to damage to reputation if an application to stay disqualification orders pending the disposition of an appeal was refused:

74 …any damage to Mr O’Brien’s reputation as a public company director has already been caused by the primary judge’s published findings. If those findings are reversed on appeal then no doubt his reputation will be reinstated. I do not accept that any stay of the disqualification order will make any difference to Mr O’Brien’s reputation as a public company director if he is successful on his appeal. If he is to be vindicated and his reputation restored, it will be as a result of the success of his appeal:

23. Further in relation to the question of whether harm to the defendant’s reputation has already occurred, I observed that the liability judgment has been reported in the Local Government and Environmental Reports of Australia, and is available on Caselaw.

24. I also drew attention to Whitlam v A**ustralian Securities and Investments Commission [8] (Whitlam), where Giles J said at [45]:

45 It may be accepted that, having regard to the findings made and such support as there is for Mr Whitlam’s reputation has been adversely affected by the findings made by Gzell J and the disqualification order. The harm to reputation asserted by Mr Ahmed has already occurred. If Mr Whitlam is to be vindicated, and his reputation restored, it will be by success in his appeal. It is difficult to see that a stay would operate as a kind of interim restoration of reputation, and it should not be granted for that purpose. This is not a case in which such doubt has been shown as to the findings of the trial judge that, by so stating and granting a stay, any significant repair to damaged reputation might be worked.

25. Mr Howard submitted that O’Brien and Whi**tlam were not concerned with publication orders. The proposition that publication would not add anything to what is in the public domain was submitted to be an “untenable one”.

Prosecutor’s submission on the motion

26. Ms Marsden for the prosecutor submitted that it was “a matter for the Court” as to whether to grant a stay or orders 13(b) and 13(c). She made two points. First, she submitted in relation to Chen at [15] and whether the Court is required to assess the question of arguable case, or whether it is a lesser assessment, there is some distinction as to the nature of the assessment of an arguable case on appeal. Chen was submitted to be a decision of the Court of Appeal, and the test to be framed differently in the Court of Criminal Appeal. The prosecutor submitted that the test articulated by the Court of Criminal Appeal in Harris v Harrison is more appropriate here as it is the Court of Criminal Appeal that will consider the appeal from the liability judgment.

27. In Alexander v Cambridge Credit, the Court at [694] held that the mere filing of an appeal will not demonstrate an appropriate case. Although the defendant here is seeking “a very short stay”, there is a difficulty in assessing its application for a stay. In Harris v Harrison the Court at [26] used the words “in determining whether to grant a stay, [the Court] will make a preliminary assessment as to whether the applicant has an arguable case on appeal”. The prosecutor submitted that there is a difficulty in this being demonstrated by the defendant in the absence of an appeal.

28. Second, Ms Marsden submitted, the liability judgment was published almost a year ago. It has been published on Caselaw and law reporting websites for 10 to 11 months. It has been published in the Local Government and Environmental Reports of Australia. The prosecutor tendered on the motion an online publication in the Namoi Valley Independent dated 4 October 2024, titled “Miner breached environmental laws in ‘almighty’ blast” by Stephanie Gardiner. This appears to be an AAP publication.

29. The prosecutor submitted that the text the subject of orders 13(b) and 13(c) could be deleted. Further, Ms Marsden submitted that because the liability judgment has been published for some 10 months, it cannot be said that there will be irreparable reputational damage, and that there has already been a degree of reputational damage. The prosecutor’s submission was that the defendant’s reputation would be reinstated if successful on appeal, and the defendant could publish its success on LinkedIn and in a subsequent sustainability report.

30. The prosecutor sought to distinguish Harris v Harris**on as in that case the defendant had entered a plea of guilty. In this case, by contrast there has been a finding of guilt in the liability judgment.

Defendant’s submissions in reply

31. In the course of the hearing, I raised with Mr Howard the period of time which had lapsed since the liability judgment was published on 31 October 2024, and why the defendant was not in a position to address the Court on the grounds of appeal it would seek to advance in its appeal from that judgment. In reply, Mr Howard submitted that the defendant is entitled to and would be remiss in not considering the Court’s decision on sentence before finalising its notice of appeal. It was submitted that that period of time should not be held against the defendant or that it might be said that it has in any way been dilatory.

32. In relation to the prosecutor’s submission that a publication could be deleted, if the appeal were successful, Mr Howard submitted that a publication cannot be unpublished, that is, it cannot be undone. Once “you put anything online there is a risk that it can have a perpetual life online”.

33. On the other side of the equation, Mr Howard submitted the scales were tipped clearly in favour of the grant of a stay of the publication orders until 30 September 2025. Otherwise, there would be serious and irreversible damage to the defendant. If a stay were not granted, there was no suggestion that any person would be prejudiced if a stay of the publication orders were granted until 30 September 2025.

Consideration and conclusions

34. In the exercise of my discretion in determining whether or not to stay the publication orders (orders 13(b) and 13(c)), I am mindful that the stay sought is interim in nature, that is only until 30 September 2025. The defendant has foreshadowed that it expects to file an appeal, by 19 September 2025.

35. On the other hand, the defendant has not provided any satisfactory explanation for its delay in seeking a stay of all of the orders in the judgment on sentence until it has finalised its notice of appeal. The defendant has had the opportunity to consider and provide instructions in relation to the liability judgment since 4 October 2024.

36. To adopt the language of the Court of Appeal in Alexander v Cambridge Credit, once a Court has reached its own conclusion, it must not shrink from giving effect to it.

37. Further, having regard to O’Brien, Whitlam, Harris v Harrison, Alexander v Cambridge Credit and Chen, I consider that any reputational damage caused to the defendant by the publication orders would be ameliorated by the restoration of its reputation on a successful outcome on appeal.

38. A point of distinction, however, with O’Brien and Whitlam, is that those cases concerned disqualification orders. It was not the subject of submission by the defendant or the prosecutor, however, it seems to me that the context of a stay sought of disqualification orders is materially different than that of a stay sought of publication orders. The material difference relates to the protection of the public which is inherent in disqualification orders. No such comparable interest in the protection of the public inheres so immediately in publication orders. At the same time, I remain to be persuaded on a subsequent occasion that the defendant’s reputation would not be restored in the event of a successful appeal.

39. Whilst finely balanced, in particular given the imposition on the Court’s resources of having to determine two separate stay applications, in the exercise of the Court’s discretion, I have determined on the balance of convenience to stay the publication orders 13(b) and 13(c) made on 27 August 2025 until 30 September 2025.

Orders

40. The Court orders that orders 13(b) and 13(c) made by Pritchard J on 27 August 2025 be stayed until 30 September 2025.

**********

Endnotes

[2024] NSWLEC 97; (2024) 262 LGERA 350.

[2025] NSWLEC 92.

(1985) 2 NSWLR 685.

[2013] NSWCCA 314.

Citing Waller v Todorovic (Court of Appeal, 21 December 1979, unreported) at 3; Re Middle Harbour Investments Ltd (In Liq) (Court of Appeal, 15 December 1976, unreported) at 2 (Mahoney JA) (Moffitt P and C Glass JA agreeing).

[2009] NSWCA 121.

[2009] NSWCA 312.

[2002] NSWCA 312.