Lester v Ashton Coal Mining Operations Pty Ltd

EX tempore Judgment 1By a notice of motion filed on 24 August 2011, Robert Lester sought urgent relief "to stay judgement [sic] in proceedings 10335/11 until further order". The latter proceedings I will refer to as "the Class 1 proceedings". It is the notice of motion so filed that comes before me on an urgent basis today, sitting as the Duty Judge. 2Since the filing of Mr Lester's notice of motion on Wednesday last, events have occurred which have resulted in an amendment being sought to the notice of motion then filed. At the time of filing, it was intended to seek an order staying the delivery of any judgment in the Class 1 proceedings. As it happened, judgment was delivered in those proceedings on Thursday last, 25 August ( Ashton Coal Operations Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No. 3) [2011] NSWLEC 1249). Orders were made by the Commissioners on 26 August and those orders were entered on that same day. 3Mr Lester is represented by Mr A Oshlack as his authorised agent (cf s 63 of the Land and Environment Court Act 1979). Mr Oshlack is an advocate who regularly appears in this Court. He now seeks to amend the notice of motion to seek orders having the following effect: (i) a stay of the orders made in the Class 1 proceedings on 26 August and (ii) a transfer of the Class 1 proceedings to these proceedings [sic] pursuant to s 20(3A) of the Land and Environment Court Act 1979 ( the Court Act ). 4In order to address the present notice of motion, it is necessary to notice something of the background to the present litigation in which the parties are involved. 5Ashton Coal Mining Operations Pty Ltd or Ashton Coal Operations Pty Ltd, as it is correctly known ( Ashton ), operates a coal mine in the Upper Hunter Valley region of New South Wales. Its operations are generally carried out by the longwall method of underground mining. Relevantly, this activity is undertaken in accordance with a development consent said to have been granted in 2002 and subsequently modified. 6On 20 January 2011, Ashton made application to the Director-General of the Department of Environment, Climate Change and Water (now known as the Chief Executive of the Office of Environment and Heritage) ( the Director-General ) pursuant to s 90A of the National Parks and Wildlife Act 1974 for an Aboriginal heritage impact permit. By subsection (2) of that section, the application was required to be made in or to the effect of a form approved by the Director-General and - "contain or be accompanied by such documents and information as is required by regulations or by the Director-General (as indicated in the form or in material accompanying the form)". By cl 80D of the National Parks and Wildlife Regulation 2009 , such an application was required to be accompanied by a cultural heritage assessment report. 7Ashton's application was not determined within a period of 60 days from the date of its lodgement with the Director-General. As a consequence, it appealed to this Court pursuant to s 90L of the National Parks and Wildlife Act . It was that appeal that became what I have referred to as the Class 1 proceedings. While Ashton was the applicant in those proceedings, the Director-General was the named respondent. 8During the hearing of the Class 1 proceedings, Mr Lester and Mr Scott Franks, a supporter of Mr Lester in these present proceedings, both gave evidence. On two occasions Mr Franks made application to be joined as a party to the Class 1 proceedings. On each such occasion his application was considered but refused. The refusal of joinder on one occasion was confirmed by Sheahan J as a result of a notice of motion by Mr Franks to have the decision of the Commissioners reviewed ( Ashton Coal Operations Pty Ltd v Director-General, Department of Environment, Climate Change and Water (No. 2) [2011] NSWLEC 116). 9These Class 4 proceedings were commenced by a summons filed on 5 August 2011. By amendments since made to that summons, the relief sought by Mr Lester falls into two broad categories. The first is directed to the operations of Ashton under the 2002 development consent, as modified. It is claimed by Mr Lester that work being carried out by Ashton at the relevant mining site is not in conformity with the consent. That aspect of the proceedings may be put aside for present purposes. 10The second category of orders sought in the present proceedings are directed to the validity of the application made by Ashton to the Director-General under s 90A of the National Parks and Wildlife Act , that being the application founding the Class 1 proceedings that have now been determined. The present proceedings, being those in which Mr Lester's notice of motion is brought, have not yet been heard. 11However, on 8 August 2011, Mr Lester had filed a notice of motion seeking a number of interlocutory orders, including an order staying the Class 1 proceedings. That notice of motion is presently part heard before Sheahan J, the hearing having occupied the entire day on 18 August, and is now adjourned until 27 September next. 12It would seem that the notice of motion presently before me and filed on Wednesday last was intended to bring forward the stay motion in respect of the Class 1 proceedings, against the possibility that judgment would be delivered. As I have indicated, that has now occurred and orders made. The orders made in the Class 1 proceedings allow the appeal and authorise the issue of an Aboriginal heritage impact permit, subject to conditions. 13The reason expressed on behalf of Mr Lester for the present stay of orders made in the Class 1 proceedings is that those proceedings involve "an abuse of process". At least that is the description ascribed to them by Mr Oshlack. It is said that the document accompanying the application for the permit was not a cultural heritage assessment report in accordance with the requirements of cl 80D of the National Parks and Wildlife Regulation . For this reason it is said that the application itself is a nullity, having the consequence that the Class 1 proceedings are themselves "a nullity" which, in turn, impeaches the judgment and orders made in those proceedings. It is acknowledged that the claimed deficiency of the cultural heritage assessment report was addressed in the judgment of the Commissioners ([124] - [133]), albeit, in the submission of Mr Oshlack, inadequately and incorrectly. 14Fundamental to any determination that I am required to make is the identification of the power available to me to make orders of the kind that Mr Lester seeks. The respondents submit that I have no such power. 15Mr Oshlack has identified three sources of power which he submits would enable me to make the stay order that he seeks. First, he refers to s 16(1A) of the Court Act. That section provides the Court with jurisdiction: "to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act." 16For my part, I am unable to see how this section provides the power that Mr Oshlack seeks to invoke. The section, so it seems to me, is not directed to any matter pertaining to the consideration of matters arising in separate proceedings each of which have been commenced in this Court and on their face, fall within a jurisdictional head identified in the Court Act. Rather, the section is directed to permit the determination of matters that do not otherwise arise for determination in this Court but which are necessary to be determined as an incidence of the determination of a matter that falls within the jurisdiction of the Court. The section has the capacity to avoid a multiplicity of proceedings in different courts because of a limitation on issues indirectly arising in the determination of proceedings properly commenced in the Court. In short, it does not address the circumstances that arise in the present case. 17The second source of power identified by Mr Oshlack is s 20(2) of the Court Act. That section affords to the Court the same civil jurisdiction as the Supreme Court would, but for s 71 of the Court Act, have to hear and dispose of proceedings: "(a) to enforce any right, obligation or duty inferred or imposed by a planning or environmental law or a development contract, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, (d) ... ." 18As will be apparent, the operation of subsection (2) is predicated upon the law in question being "a planning or environmental law". It is not disputed that the National Parks and Wildlife Act is such a law. However, the civil jurisdiction conferred by s 20(2) is not a jurisdiction directed to the enforcement by a third party or review by that third party of a judgment given and orders made in other proceedings before the Court. 19It must be remembered that pursuant to s 36(3) of the Court Act, the decision of Commissioners, made in proceedings directed by the Chief Judge be heard by them, is deemed to be a decision of the Court. Subsection (2) of s 20 is not a source of power enabling me to review or take action in respect of a decision of the Court in other proceedings. The only means by which such a decision can be reviewed is that for which provision is otherwise made in the Court Act. 20So much is made clear by the provision of s 56 of the Court Act which provides as follows: " 56 Nature of decision of the Court Except as provided: (a) by Division 2, in relation to proceedings in Class 1, 2, 3, 4 or 8 of the Court's jurisdiction, or (b) by the Criminal Appeal Act 1912, in relation to proceedings in Class 5, 6 or 7 of the Court's jurisdiction, a decision of the court shall be final and conclusive." The exception to finality of decisions, identified in paragraph (b), is clearly irrelevant and the exception provided in paragraph (a) of s 56 is a reference to those provisions within Div 2 of Pt 5 of the Court Act that make specific provision for appeals either within or from the Court. 21An appeal from a Commissioner or Commissioners, exercising the Court's jurisdiction, is limited to a decision on a question of law and is available pursuant to s 56A of the Act. That right of appeal is only able to be exercised by a party to the proceedings from which the appeal is sought to be taken (s 56A(1). It is not a right available to Mr Lester in respect of the Class 1 proceedings. 22The provisions of s 56A and those identified in Div 2 of Pt 5 make clear that any action directed to a stay of a decision or orders can only be undertaken as ancillary to the exercise of a right of appeal under the statutory provisions. As I have indicated, Mr Lester is not entitled to exercise any such right, his application for joinder to the Class 1 proceedings having been refused. 23The third source of power identified by Mr Oshlack as sustaining his entitlement to the stay order that he seeks is Pt 36, r 36.16 of the Uniform Civil Procedure Rules 2005 ( UCPR ). Sub-rule (1) of that rule provides that the court may set aside a judgment or order if a notice of motion so to do is filed before entry of the judgment or order. In the circumstances that I have earlier outlined, a question arises as to whether the notice of motion filed by Mr Lester on 24 August seeking to stay the delivery of judgment is a notice of motion that is made conformably with the sub-rule. However, I will assume, for the purpose of argument, that it was so made. Even on that assumption, Mr Lester is not assisted. The rule does not identify the entitlement of a stranger to the judgment or orders to seek to have them set aside. 24It seems to me that the discretionary power available under the rule is one able to be invoked only by a party to the proceedings in which the judgment or order is made. The provisions of sub-rule (2) confirm that conclusion. It is not a rule that can be invoked by a third party whose only association with the proceedings is as a witness, no matter how interested that third party may be in the judgment or orders made. 25Had I determined that UCPR, r 36.16 provided the power sought to be invoked then it would have been necessary for evidence to be considered which informed the exercise of discretion as to whether the power should be exercised. For the reasons I have indicated, it is unnecessary to take that course, given that the rule is not available to Mr Lester. 26I do not overlook the application made by Mr Oshlack to amend the notice of motion so as to provide for the transfer of the Class 1 proceedings to the present Class 4 proceedings. In a sense, that is an additional power that he seeks to invoke, for the purpose of supporting his stay application. However, it seems to me that subsection (3A) of s 20 of the Court Act has no application to the present circumstances. The subsection, which has recently been inserted into the Court Act, is directed to proceedings transferred to this Court from the Supreme Court pursuant to s 149B of the Civil Procedure Act 2005. It is a provision complementary to the jurisdiction conferred upon the Court in Class 4 proceedings by operation of s 20(1)(cj) of the Court Act. 27Even if this be wrong, as Mr Oshlack submits it is, the terms of s 20(3A) make abundantly clear that its purpose is to enable there to be determined in one set of proceedings issues that arise in two separate proceedings. It contemplates that two unresolved proceedings will be determined as one. The subsection would be wholly inappropriate to contemplate the joinder of concluded Class 1 proceedings into the present Class 4 proceedings. 28For all those reasons, I have determined that there is no power that I am able to exercise to order the stay sought in Mr Lester's notice of motion. In the result, that motion must be dismissed.